An Outcome Desperately In Seek of a Rationale -- Part Two of Two

Often in abortion jurisprudence, the dissents make for far better, more thoughtful reading, and not just because (or even primarily because) the dissenter comes out on our side. Such was the case yesterday when a divided three-member panel of the 4th Circuit again crushed Virginia’s 2003 Partial-Birth Infanticide law.

The confused majority was comprised of the same two judges who shot the law down in 2005--M. Blane Michael and Diana Gribbon Motz. The blistering dissent was authored by Paul V. Niemeyer, the same judge who wrote a withering critique three years ago.

Their decision had been vacated by the United States Supreme Court for reconsideration in light of the High Court’s 2007 decision upholding the federal Partial-Birth Abortion Ban Act. Niemeyer began by observing that Michael and Motz may be “unwittingly inviting the Supreme Court to spell out in this case that Virginia’s statute is likewise constitutional.” Why? “[B]ecause in the nature and scope of conduct prohibited, it is virtually identical to the federal statute upheld as constitutional in Gonzales v. Carhart.”

What Virginia Attorney General Bob McDonnell does next is unknown, as of this writing. His spokesman told reporters, "We are extremely disappointed with the divided decision. . . . We are reviewing the panel opinion at this time and considering all possible courses of action."

Virginia has 14 days to ask for the entire 4th Circuit to hear the case or, alternatively, 90 days to ask the U.S. Supreme Court to consider an appeal.

In a nutshell judges Michael and Motz argued—in what judge Niemeyer retorted was a “glaring misreading” of the Virginia law and Carhart— that the state law is different from the federal Partial-Birth Abortion Ban Act. The duo reasoned thusly.

Abortionists are not protected when the standard second-trimester abortion “accidentally” becomes what the state calls partial-birth abortion infanticide. Out of fear of being prosecuted, these abortionists will not perform any second-trimester abortions, Michael wrote, and "The Virginia act is therefore unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion."

Niemeyer dismantles their “crabbed” and “untenable reading” of the Virginia Act section by section, phony distinction by bogus comparisons. (You can read the entire opinion at http://pacer.ca4.uscourts.gov/opinion.pdf/031821A.P.pdf]

He shows that the two laws are “not materially different and that therefore the constitutionality of the Virginia Act is governed by Gonzales v. Carhart.” The reasoning that undergirds what the majority alleges are “key differences” in the two laws is “demonstrable wrong.”

He does this in a number of areas but key is that to be in violation the abortionist must “knowingly commence” with the intent of performing the abortion procedure that is banned by the Virginia law. Without intent, the abortionist cannot be prosecuted.

Niemeyer also takes the majority to the woodshed over its willingness to hear a “facial” challenge to the law (as opposed to an “as-applied” challenge). A facial challenge attempts to strike down the entire law before it ever goes into effect, so dramatic a remedy that a plaintiff must, in theory, meet strict requirements. An as-applied challenge says the law should not be applied in particular, defined circumstances.

Niemeyer explains that for a facial challenge to the Virginia law to succeed, it would have to be shown either that there were no circumstances in which Virginia’s law is constitutional or that it was at least unconstitutional “in a large fraction of relevant cases.”

But as he writes, “The majority opinion rests on a hypothetical factual circumstance that is not contemplated by the Virginia Act—a legal standard D&E procedure that ‘accidentally’ results in the delivery of an intact fetus—and that, according to plaintiff’s own witnesses, occurs only rarely or, according to Virginia’s witnesses, never occurs. An analysis based on hypotheticals of the type relied on by the majority violates the express instructions of Gonzales v. Carhart for conducting facial challenges.”

Moreover, Niemeyer writes, because the majority concluded that the Virginia law is facially unconstitutional, “it does not address to any significant extent [the state of] Virginia’s contention that the district court stacked the factual deck against the Commonwealth by improperly excluding from consideration important evidence that would have supported even further the constitutionality of the statute, and that placed any factfinding by the district court deeper in doubt.”

Let me conclude with a scintillating excerpt from the close of Niemeyer’s brilliant dissent:

“Indeed, after reading the majority’s opinion, one is struck by the extensive efforts the opinion makes to conceive of a remote hypothetical factual circumstance that might exemplify its thesis that the Virginia Act prohibits more than is prohibited by the Federal Act, which the Supreme Court upheld in Gonzales v. Carhart. The majority’s selective use of statutory language and its rationalizations represent nothing less than a judicial will to overturn what the Virginia legislature has enacted for the benefit of Virginia’s citizens and what, in material undistinguishable terms, the Supreme Court has upheld as constitutional.”

Please send your thoughts and comments to Davenandrusko@hotmail.com

Part One