Virginia Partial-Birth Abortion Ban Receives OK From Federal Appeals Court

State   |   Steven Ertelt   |   Jun 24, 2009   |   9:00AM   |   WASHINGTON, DC

Virginia Partial-Birth Abortion Ban Receives OK From Federal Appeals Court

by Steven Ertelt Editor
June 24
, 2009

Richmond, VA ( — A federal appeals court issued a 6-5 decision on Wednesday upholding a state ban on partial-birth abortions. The full 4th Circuit Court of Appeals held a hearing late last year in the case after a three judge panel struck down the law as unconstitutional even though the Supreme Court has upheld a federal ban.

Former Virginia Attorney General Bob McDonnell, now a pro-life gubernatorial candidate, asked for the hearing after a pro-abortion legal group filed suit to overturn the ban on the gruesome abortion procedure.

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.

The full appeals court reversed the decision saying that the panel ruled based on a what if situation and not on the rule of law.

Current Attorney General Bill Mims applauded the ruling in a statement received.

“I am pleased that the Fourth Circuit has upheld the constitutionality of Virginia’s ban on partial-birth infanticide," he said.

"Attorneys General Kilgore, Jagdmann, McDonnell and I have defended this statute over the last six years. This is a law that passed both houses of the General Assembly with bi-partisan support," he added.

The ruling went along party lines with the court’s six Republican-appointed judges siding against judges nominated by Democrats.

Judge Paul Niemeyer wrote the opinion for the majority, which included a concurring opinion by Judge J. Harvie Wilkinson III.

“The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull,” Wilkinson wrote. “Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.”

Wilkinson added, that “it is unsettling to tamper with the most sacred of life’s cycles and disquieting for those here on earth to pull the ladder up on those who would join the human company.”

The Center for Reproductive Rights, which filed suit for the Richmond Medical Center abortion business, claimed the ruling would make it so a medically-needed abortion procedure can no longer be done.

However, doctors, including the American Medical Association, have said there is never any medical reason for the partial-birth abortion to be done.

CRR may appeal the appellate court’s decision to the Supreme Court, a possibility Mims mentioned in his statement.

"This is a law that passed both houses of the General Assembly with bi-partisan support. While we anticipate that the U.S. Supreme Court may be asked to review the decision, I am confident that the Supreme Court ultimately will uphold the law," he said.

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.

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