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NRL News
Hats Off
to Virginia AG Bob McDonnell
The full 10-member U.S. Court of Appeals for the 4th Circuit has accepted the request of Virginia Attorney General Bob McDonnell to review the ongoing challenge to the state’s Partial-Birth Infanticide law. The law, which passed overwhelmingly in 2003, has taken it on the chin twice from a three-member panel of the 4th Circuit. The majority in both cases consisted of judges M. Blane Michael and Diana Gribbon Motz. In each instance Judge Paul V. Niemeyer wrote a withering dissent. In 2005, by a vote of 2–1, the panel declared the law unconstitutional. The then-attorney general for the Commonwealth of Virginia asked the Supreme Court to review Richmond Medical Center v. Herring. In April 2007, when the United States Supreme Court upheld the federal Partial-Birth Abortion Ban Act, the justices vacated the panel’s decision and sent it back for reconsideration. Proving that it had learned nothing, on May 20, 2008, a panel again found the statute unconstitutional. Ten days later McDonnell asked the full court to review the panel’s decision. On a 6–4 vote, the 4th Circuit agreed July 28 to do just that. You can read McDonnell’s very thoughtful brief at www.vaag.com/LEGAL_LEGIS/CourtFilings/03-1821-Petition%20for%20Rehearing%20En%20Banc.pdf. The core of Michael’s and Motz’s decision was that Virginia’s Partial-Birth Infanticide law is different from the federal Partial-Birth Abortion Ban Act upheld in Gonzales v. Carhart. They claimed that, under the commonwealth’s law, abortionists are not protected when the standard second-trimester abortion “accidentally” becomes what the state calls partial-birth infanticide. McDonnell, as had Judge Niemeyer, thoroughly debunked that canard. His brief conclusively demonstrated that the Virginia law is substantially identical to the federal law and a Virginia abortionist would not be prosecuted for accidentally performing such an abortion. But most interesting is McDonnell’s handling of the plaintiffs’ “facial” challenge to the law. A “facial” (on its face) challenge wants the entire law declared invalid before it ever goes into effect. By contrast, an “as-applied” challenge says, we have seen a law in action and we believe it is unconstitutional in the given set of circumstances brought before the court. McDonnell’s brief does an excellent job of citing decisions of both the 4th Circuit and the United States Supreme Court to buttress the unassailable point that facial challenges are very, very dicey, except in 1st Amendment free speech cases. Facial challenges “often rest on speculation” (prematurely interpreting statues on the basis of “factually barebones records”) and violate the basis principle of judicial restraint—federal courts should adjudicate “on a case-by-case basis,” not “make broad pronouncements regarding litigants and circumstances not before the court.” McDonnell quotes from a Supreme Court decision which concluded, “[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Put another way, courts ought to be in the business of finding ways to uphold laws, not nit-picking to find a route to overturn them. This is important. In Gonzales v. Carhart, the High Court wrote, “It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which, in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’” Pro-lifers have long called this the “Abortion Distortion” factor. Hats off to Attorney General McDonnell for vigorously defending Virginia’s Partial-Birth Infanticide law. |