Virginia Partial-Birth Abortion Ban Ruled Unconstitutional by Appeals Court

State   |   Steven Ertelt   |   May 20, 2008   |   9:00AM   |   WASHINGTON, DC

Virginia Partial-Birth Abortion Ban Ruled Unconstitutional by Appeals Court

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by Steven Ertelt Editor
May 20
, 2008

Richmond, VA ( — A federal appeals court panel ruled that Virginia’s ban on partial-birth abortions is unconstitutional even though the Supreme Court has upheld a national ban on the abortion procedure. This is the second time the 4th U.S. Circuit Court of Appeals has struck down the state’s ban.

On Tuesday, a three judge panel from the appeals court ruled 2-1 that the ban is invalid.

The Supreme Court had ordered the appeals court judges to reconsider the ban after issuing its April 2007 decision saying the Congressional ban does not violate the Constitution.

The appellate court said the Virginia ban doesn’t contain a measure the federal one does that allows abortion practitioners not to be prosecuted if they set out to do a legal abortion procedure and wind up doing a partial-birth abortion instead.

The nation’s high court had also indicated the federal ban doesn’t require a health exception that would render it meaningless and pointed out cases when abortion violates women’s medical and mental health.

The 4th Circuit had originally declared the partial-birth abortion ban invalid because it failed to include such an exception, even though the three-day-long abortion procedure is never necessary to protect a woman’s health.

In June 2005, the three judge panel issued its original decision upholding the ruling of a Richmond federal judge who said the measure was unconstitutional for the same reason.

"Because the Virginia Act does not contain an exception for circumstances when the banned abortion procedures are necessary to preserve a woman’s health, we affirm the summary judgment order declaring the Act unconstitutional on its face,” Judge M. Blane Michael wrote at the time.

However, Judge Paul Niemeyer dissented and said the Virginia law, which defines a partial-birth abortion as an infanticide, is significantly different from the Nebraska statute the Supreme Court originally overturned.

He said the panel’s opinion "in essence, constitutionalizes infanticide of a most gruesome nature.”

The judges based their prior decision on a 2000 Supreme Court ruling that struck down a Nebraska law banning partial-birth abortions because it didn’t have the health exception.

But the Supreme Court’s more recent decision to uphold the federal ban overturns the Nebraska case.

The Center for Reproductive Rights, a pro-abortion law firm that filed a legal challenge to the law, filed the original suit against the ban and claimed it was written so broadly that it would ban other later-term abortion procedures.

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