Virginia Partial-Birth Abortion Ban Receives Federal Appeals Court Review

State   |   Steven Ertelt   |   Oct 28, 2008   |   9:00AM   |   WASHINGTON, DC

Virginia Partial-Birth Abortion Ban Receives Federal Appeals Court Review

by Steven Ertelt Editor
October 28
, 2008

Richmond, VA ( — A federal appeals court heard arguments on Tuesday for and against a state ban on partial-birth abortions. The full 4th Circuit Court of Appeals held the hearing after a three judge panel struck down the law as unconstitutional even though the Supreme Court has upheld a federal ban.

The appellate court agreed in July to a request from pro-life Virginia Attorney General Bob McDonnell for the hearing.

Solicitor General William Thro spent part of the 80 minute hearing arguing for the ban while Stephanie Toti, a Center for Reproductive Rights lawyer representing an abortion business that challenged the law, argued against it.

The appellate court panel 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.

According to an AP report, he brought up those same concerns during the full hearing.

"It’s really different,” he said. “When you put these two statutes together they just don’t look the same or read the same.”

In a legal brief filed in September, Americans United for Life agreed with Marshall and said the Virginia ban is constitutional and should be upheld.

"Time and time again, the U.S. Supreme Court has affirmed that states have a significant interest in protecting women and children from the harm inherent in abortion. That is precisely what the Act does," AUL staff counsel Mailee Smith told

AUL vice president and legal director Denise Burke also chimed in and said the three judge panel "split hairs" by "looking for conflict where there was none."

Burke told that the panel stuck down ‘a law nearly identical to the federal partial-birth abortion ban upheld by the U.S. Supreme Court last year."

"Courts usually give great deference to legislative enactments, making every effort to find them constitutional and enforceable. Here, the panel did the opposite," Burke said about the prior ruling.

The case is Richmond Medical Center v. Herring. The appeals court is expected to take a few weeks to rule on the case.

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