(CN) – The full 4th Circuit upheld a Virginia law banning partial-birth abortion on a narrow 6-5 vote, upending an earlier panel ruling that the law was too vague and exposed doctors to discriminatory prosecution.
Virginia’s Partial Birth Infanticide Act makes it a felony to “kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother.”
Before the law took effect in July 2003, the Richmond Medical Center and owner Dr. William Fitzhugh sued to declare the Act unconstitutional. They claimed the law impermissibly failed to take into account the mother’s health and defined the banned procedure “so broadly as to ban the safest and most common second trimester method of abortion.” This unnecessarily burdened a woman’s right to choose abortion, they argued.
A federal judge declared the Act unconstitutional and blocked its enforcement, a decision affirmed by a divided three-judge panel of the federal appeals court in Richmond, Va.
While Virginia appealed the case to the U.S. Supreme Court, the high court upheld a similar partial-birth abortion ban in Gonzales v. Carhart. The justices then vacated the 4th Circuit’s ruling and told the judges to reconsider in light of Gonzales.
The appellate court again struck down the Act as unconstitutional, saying it lacked safeguards for doctors who set out to perform standard abortions that, by accident, became partial-birth abortions.
At Virginia’s urging, the full appeals court agreed to rehear the case.
“We now conclude that insofar as Dr. Fitzhugh mounts a facial challenge against the Virginia Act, the challenge fails, because:
“(1) Dr. Fitzhugh’s posited circumstance does not present a sufficiently frequent circumstance to render the Virginia Act wholly unconstitutional for all circumstances;
“(2) the Virginia Act’s scienter language, although different from the Federal Act, nonetheless provides sufficient notice to a reasonable doctor of what conduct is prohibited by the statute; and
“(3) the provisions for a safe harbor and affirmative defenses, as well as the requirement of “an overt act,” ensure that the Virginia Act will not create a barrier to, or have a chilling effect on, a woman’s right to have a standard (dilation and evacuation) or her physician’s ability to undertake that procedure without fear of criminal liability,” Judge Niemeyer concluded.
In a 25-page dissent, Judge Michael argued that the majority’s opinion “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstitutional burden on a woman’s right to choose.”
Judges Motz, Traxler, King and Gregory joined the dissent.