Court Upholds Partial-Birth Abortion Ban

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Court Upholds Partial-Birth Abortion Ban

Special Report - June 29, 2009
A full panel of the U.S. Court of Appeals for the 4^th Circuit has upheld the constitutionality of a Virginia statute banning partial-birth abortion. In a 6 to 5 ruling issued June 24, the 4^th Circuit reversed a previous ruling by a three-judge panel of the same court, which struck the ban down as unconstitutional. The State of Virginia asked the full panel of the 4^th Circuit to rehear the case, which resulted in the majority decision to uphold the state’s prohibition on partial-birth abortion.

Enacted in 2003, Virginia’s “Partial-Birth Infanticide” Act is similar to the federal ban on partial-birth abortion, which was upheld by the U.S. Supreme Court in 2007 in Gonzalez v. Carhart. An abortion provider in the state challenged the Virginia ban, arguing that it was overly broad and did not include an exception for the health of the mother. The act defines partial-birth infanticide as “any deliberate act that is (i) intended to kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother, and that (ii) does kill such infant, regardless of whether death occurs before or after extraction or expulsion from its mother has been completed.”

In its June 24 opinion, written by Circuit Judge Paul V. Niemeyer, the 4^th Circuit concluded: “To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstance presented...is not appropriate under any standard for facial challenges. Moreover, the Virginia Act...provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it, and therefore the Virginia Act is constitutional.”

In his concurring opinion, Circuit Judge J. Harvey Wilkinson wrote: “How a society treats its most vulnerable members may do more than grandiosity to shape its lasting worth. A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection....The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.”

Americans United for Life (AUL), which provided legal support to the State of Virginia and filed a friend-of-court brief in the case, applauded the decision. “We are thrilled that the Fourth Circuit followed clear U.S. Supreme Court precedent and upheld Virginia’s ban on partial-birth abortion—which is more accurately called partial-birth infanticide,” said Dr. Charmaine Yoest, AUL President & CEO, in a press release. “This ban protects not only the unborn, but also the health and welfare of women. It is a law that the vast majority of Americans are justified in supporting.” According to AUL, abortion proponents are expected to appeal the 4^th Circuit’s decision to the U.S. Supreme Court. The case is Richmond Medical Center v. Herring.