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4th Circuit Upholds
Virginia’s Ban on Partial-Birth Infanticide
Part Two of Three By
Dave Andrusko It took
six years of rulings moving up and down the
legal ladder, but Virginia’s 2003 ban on
partial-birth infanticide was finally upheld
yesterday by the U.S. Court of Appeals for the
4th Circuit. The full court’s 6-5 decision in
Richmond Medical Center v. Herring reversed
a previous decision by a three-judge panel that
concluded the ban was unconstitutional.
"There is no doubt that the
Virginia's partial-birth abortion infanticide
ban will save the lives of hundreds of Virginia
babies from this horrible and violent
procedure," said Olivia Gans, president of the
Virginia Society for Human Life. “Partial-birth
abortion is a deadly act that the people of
Virginia have rightly rejected through the
General Assembly and the Court was correct to
uphold this important law.”
NRL Legislative Director Mary
Spaulding Balch also hailed the decision, noting
that the law was very similar to the federal
partial-birth abortion ban upheld by the Supreme
Court in 2007 and supported overwhelmingly by
the Virginia legislature. “The Court rightly
rejected the notion that Virginia’s law and the
federal law upheld in Carhart v. Gonzales
were somehow divergent,” she said.
Following its Carhart
decision, the U.S. Supreme Court ordered the
three-member 4th Circuit panel to reexamine its
decision that found the Virginia ban
unconstitutional. On May 20, 2008, the panel
again ruled against the law, 2-1. At that
juncture the state of Virginia asked the full
court to hear the case.
Writing for the majority Judge Paul V. Niemeyer
carefully explained the history of the challenge
brought by abortionist William G. Fitzhugh.
Fitzhugh argued that the language of the ban on
what the state called “intact D&Es” was so broad
and so vague that it banned the most common
second trimester method of abortion [“dilation
and evacuation”) and thus imposed an “undue
burden” on a woman’s “ability to choose
abortion.”
Niemeyer rejected that
contention and began his 29-page opinion by
elaborating at great length on whether Fitzhugh
could bring a “facial” challenge against the
law. (These are challenges to a law before it
ever goes into effect and are by necessity based
on speculation.) He
pointed out that the U.S. Supreme Court “has, as
a policy matter, a strong preference for
avoiding facial challenges.” While the High
Court has offered slightly different tests for
whether a facial challenge is permitted,
Niemeyer pointed out that there were none under
which Dr. Fitzhugh could successfully challenge
the Virginia law.
Opponents insisted that “conscientious”
abortionists could and would feel they might be
prosecuted if an abortion that started out as a
standard dilation and evacuation abortion
“accidentally” became an intact D&E. Niemeyer
obliterated that contention.
Quoting from Carhart,
Judge Niemeyer pointed out that “an intact D&E
is almost always a conscious choice and almost
never accidental.” Moreover, “To hold the
Virginia Act facially unconstitutional for all
circumstances based on the possible rare
circumstances presented by Dr. Fitzhugh is not
appropriate, under any standard for facial
challenges.”
In addition, Niemeyer wrote,
“the Virginia Act...provides sufficient clarity
as to what conduct is prohibited to enable a
doctor of reasonable intelligence to avoid
criminal liability under it, and therefore the
Virginia Act is constitutional.”
Judge J. Harvie Wilkinson’s
concurring opinion raised a number of profound
issues--legal (especially separation of powers),
philosophical (how civilizations are measured),
and human (“This is a brutal business for which
we are asked to provide constitutional
protection and nothing in law or precedent
requires that we do”).
Near the end of his concurrent, Wilkinson wrote
this. “And that is what in the last analysis
this case is about: how the question of partial
birth abortion is to be decided. It is wrong to
recognize no discernible limits on the ability
of the court to constitutional this heinous
practice down to its last detail.”
Please send your comments to
daveandrusko@gmail.com.
Part Three
Part One |
