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NRL News
McDonnell
Appeals Decision On Virginia Partial-Birth Infanticide Act Virginia Attorney General Bob McDonnell is asking the full Fourth U.S. Circuit Court of Appeals to review the decision of a three-member panel of that court which struck down Virginia’s Partial-Birth Infanticide law. On May 20 a split panel overturned the law, concluding that it imposed an “undue burden” on the right to abortion. In a statement McDonnell said, “Given the significance of the issues at stake, and the fact that the United States Supreme Court recently upheld a very similar federal ban on the procedure, the full court should review the ruling by the divided three-judge panel.” The petition for rehearing by the full Fourth Circuit was filed June 2. According to McDonnell’s office, the court is expected to rule in about a month or two on whether the full court will review the case on the merits. If it does, it will schedule oral arguments, most likely in the fall. In Richmond Medical Center v. Herring the majority again shot down Virginia’s 2003 Partial-Birth Infanticide law. The majority consisted of judges M. Blane Michael and Diana Gribbon Motz, the same two judges who quashed the law in 2005. But as is often the case in abortion jurisprudence, the blistering dissent, authored by Judge Paul V. Niemeyer, made for far better, more thoughtful reading. Niemeyer also wrote a withering critique three years ago. The panel’s 2005 decision had been vacated by the United States Supreme Court for reconsideration in light of the High Court’s 2007 Gonzales v. Carhart decision upholding the federal Partial-Birth Abortion Ban Act. In his dissent Niemeyer observed 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.” In what judge Niemeyer retorted was a “glaring misreading” of the Virginia law and Gonzales v. Carhart, Michael and Motz argued that the state law is different from the federal Partial-Birth Abortion Ban Act. They claimed that, under the law, 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. “The Virginia act is therefore unconstitutional because it imposes an undue burden on a woman’s right to obtain an abortion.” But 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 “demonstrably wrong.” He explains that for the abortionist to be in violation of the law he 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. This is so dramatic a remedy 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 succeed, it would have to be shown either that there were no circumstances in which Virginia’s law is constitutional or that it was unconstitutional at least “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.” Niemeyer’s dissent concludes with a scintillating critique of the panel: “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.” |