Virginia Partial-Birth Abortion Ban Constitutional, Law Brief Says

State   |   Steven Ertelt   |   Jun 3, 2004   |   9:00AM   |   WASHINGTON, DC

Virginia Partial-Birth Abortion Ban Constitutional, Law Brief Says

by Paul Nowak Staff Writer
June 3, 2004

Richmond, VA ( — Pro-life attorneys have filed an amicus brief stating that Virginia’s partial-birth abortion law, passed as a ban on "partial-birth infanticide," is constitutional despite a federal judge ruling it unconstitutional in February.

Attorneys for the Horatio R. Storer Foundation, a pro-life educational foundation affiliated with the National Right to Life Committee, stated that the Virginia law passed in April of 2003 meets the requirements imposed by the Supreme Court in Stenberg v. Carhart.

The Center for Reproductive Rights convinced U.S. District Judge Richard Williams that the Virginia law was unconstitutional because it suffers from the same flaws as the Nebraska statute the Supreme Court invalidated.

However, there Virginia law corrected the errors that had existed in the Nebraska law.

"Virginia has complied precisely with what both the Stenberg majority opinion and Justice O’Connor inconcurrence said must be done to assure that the Act does not prohibit D&E abortions," said James Bopp, lead counsel for the Storer Foundation.

"The law is constitutional because it explicitly excludes so-called ‘D & E’ abortions, the inclusion of which the Supreme Court found fatal to Nebraska’s ‘partial birth abortion’ law four years ago," Bopp explained.

But, Williams agreed with abortion advocates that the law’s vagueness would expose abortion practitioners to prosecution if they performed other types of abortions, despite the carefully-worded definition of partial-birth abortions in the legislation.

Bopp added that the Virginia law also applies only to infants "born alive," and defines such a birth as when "the infant’s head is outside the body of the mother" or, in the case of a breech presentation, when "any part of the infant’s trunk past the navel is outside of the body of the mother."

Since only procedures on infants "born alive" are banned, a health exception for the life of the mother is not an issue in the Virginia law, another flaw found by the court in the Nebraska law.

Pro-life groups oppose the inclusion of health exceptions in pro-life legislation because they allow all abortions to remain legal as an abortion practitioner can define any abortion as necessary to protect a mother’s health.

"Virginia has made the judgment that when a fetus breaks the goal line to the extent defined in the Act it is entitled to the heightened protection," argues the Foundation in its brief, submitted to the Fourth Circuit Court of appeals.

"This child is sufficiently over the goal-line of personhood that it qualifies as a ‘human infant’ who is ‘born alive’ and the state has sufficient interests in protecting it from ‘infanticide’ to justify its life exception and absence of a health exception," Bopp added.

In February Williams ruled the law unconstitutional and was "impermissibly void for vagueness."

He had originally blocked the law last July in advance of the court trial over the lawsuit filed against the law by abortion advocates. He issued a permanent injunction against it in the February ruling.

Virginia legislators attempted to definite partial-birth abortions as infanticides and Williams challenged that terminology, calling it an attempt to alarm the public.

Attorney General Jerry Kilgore promised to "vigorously defend the law" and appealed Judge Williams’ ruling.

Federal are now considering pro-abortion challenges to the federal ban on partial-birth abortions signed late last year by President Bush.

U.S. District Judge Phyllis Hamilton ruled earlier this week that the federal law was unconstitutional, but only blocked the ban in San Francisco an in relation to Planned Parenthood abortion facilities, as other trials are still underway on the federal law.

More than half of the states have passed partial-birth abortion bans, although many have been overturned in court. It’s been estimated that partial-birth abortions are performed as many as 5,000 times a year, mostly on healthy babies of healthy mothers.

Public opinion polls show that a ban is supported by a vast majority of the American people.