RICHMOND, Va. (CN) - The divided 4th Circuit struck down a Virginia law banning "partial-birth infanticide," because it imposes criminal liability on doctors who set out to perform a standard abortion procedure, but accidentally end up performing a partial-birth abortion.
The court agreed to reconsider the constitutionality of the Virginia Act after the U.S. Supreme Court rejected a facial challenge to the federal Partial-Birth Abortion Ban Act of 2003, which prohibits the intact dilation and evacuation procedure (D&E), where the doctor removes an intact fetus.
The 2-1 majority noted that the federal law crucially differs from the Virginia law because it only applies to doctors who intended to perform an intact D&E at the outset of the operation, while the state law has no intent requirement. Without the intent requirement, the court ruled, doctors face criminal liability for standard procedures gone awry. Fewer doctors in Virginia would perform late-term abortions if that were the case, Judge Michael surmised.
"The Virginia Act is therefore unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion," Michael wrote.
Judge Niemeyer "profoundly" dissented, arguing that the majority opinion hinges on a rare "hypothetical factual circumstance" of a legal D&E procedure accidentally resulting in the delivery of an intact fetus. Niemeyer added that the majority misinterpreted the Supreme Court's decision to strike down a "virtually identical statute" in the federal act.
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