A federal appeals court has once again struck down Virginia's ban on late-term abortions, setting up a likely legal challenge.
A panel of the 4th U.S. Circuit Court of Appeals in Richmond on Tuesday ruled 2-1 that Virginia's 2003 "Partial Birth Infanticide Act" is unconstitutional because its restrictions impose "an undue burden on a woman's right to obtain an abortion."
The appeals court strongly suggested that the General Assembly rewrite the law.
Specifically, the court said the act does not protect a doctor from criminal liability if he accidentally performs the banned procedure while trying to perform a legal abortion.
"The Virginia act, on its face, lacks both the intent and the distinct overt act requirements found crucial to the constitutionality of the federal act," wrote Judge M. Blane Michael.
The lone dissenting judge said Virginia's act should have been ruled constitutional because it virtually mirrors the federal late-term abortion ban, which the U.S. Supreme Court upheld about a year ago.
Judge Paul V. Niemeyer called the majority's opinion a "glaring misreading" of both the Virginia act and U.S. Supreme Court precedent.
A spokesman for Virginia Attorney General Robert McDonnell, a Republican, said he also was disappointed with the ruling and had not decided whether to ask the entire 4th Circuit to reconsider the decision, or petition the Supreme Court to take the case.
The ruling led to a flood of comments from both abortion-rights groups and anti-abortion advocates who said they expect an appeal by
McDonnell. The state has 14 days to ask the full 4th Circuit to hear the case or 90 days to take it to the U.S. Supreme Court.
Nathan Driscoll, an attorney with the Virginia Beach-based National Legal Foundation, called the ruling "flawed."
"Obviously, the National Legal Foundation is pro-life in general, so we don't like opinions that come down pro-abortion," Driscoll said.
He said the complicated 31-page majority opinion seeks to weave through case law and precedent to come up with an unconstitutional ruling.
"The difference between the federal and state statutes are extremely small," he said, noting that the type of second-trimester abortion in the ruling is rarely done.
The handful of second-trimester abortions that are performed in South Hampton Roads are done because the woman is experiencing serious medical problems or because the fetus has severe defects, doctors have told The Virginian-Pilot in the past. In most cases, those women are referred to hospitals in other areas.
The ruling was hailed by abortion-rights supporters who said they were surprised that the usually conservative Virginia-based federal appeals court would side with abortion rights.
"Today's ruling holds the line against attempts to block women's access to abortion care," said Tarina Keene, formerly of Norfolk, who serves as executive director of Pro-Choice Virginia based in Alexandria.
However, she wasn't optimistic that the ruling would be upheld on appeal. "This ruling might prove to be the exception rather than the rule as more reproductive-rights cases go into the courts," she said.
University of Richmond School of Law professor Carl Tobias said he expects to see more state skirmishes on abortion in light of the U.S. Supreme Court's decision last year upholding a federal ban on late-term abortions.
"The question is what will happen next," he said. "I'm sure it will be appealed. I don't think there's any question about that."
Last June, the 6th U.S. Circuit Court of Appeals declared Michigan's law unconstitutional because it could also prohibit other abortion procedures, and the Supreme Court in January refused to review the decision.
In its majority ruling, the 4th Circuit seemed to challenge the Virginia General Assembly to address the flaws in the act.
"Any remedy short of declaring the act invalid would require us to rewrite its very core, and that is a task that must be left to the legislature," Michael wrote in the majority opinion.
"We recognize, of course, that Virginia may enact a statute that prohibits certain abortion procedures," he continued, "so long as the statute complies with the limits imposed by the Constitution."
He suggested that the U.S. Supreme Court's ruling last year would provide "the Commonwealth with further (and important) guidance."
The same three judges issued a nearly identical ruling in 2005, but the U.S. Supreme Court sent the case back to the 4th Circuit for re-examination last year in light of its ruling upholding the federal ban.
Attempts to reach several legislators were unsuccessful Tuesday.
The Associated Press and The Washington Post contributed to this report.
Tim McGlone, (757) 446-2343, tim.mcglone@pilotonline.com
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Fetus or Baby??
Well, a Fetus IS a baby. Definitions from the DICTIONARY...... Fetus meaning: offspring: young: in the womb of the mother. If it's not a baby, it would NOT be called a fetus. It would be called something else. If you look up the word BABY that means..a human fetus. There in NO disputing what FETUS or BABY means. They mean the SAME THING!!! True Pro lifers don't support killing any baby for any reason. No baby is inconvenient. There is a purpose for ALL babies/people. No one knows if the baby I killed was going to be the one to find a cure for a certain type of cancer or one of the babies killed today is going to be the one that could have found a cure for cancer. When I had my first, is was 19. She was the BEST thing that ever happend to me! At the time, I worked for 9.00/hr and her dad went to University of Maryland full time and workded part time for 6.50/hr. It wasn't the best time for us to have a baby he wanted an abortion I refused but he would never change the fact and is VERY GLAD I didn't kill her. Things were tough, we hardly had any money, but we did what we had to do. She is 9 now and has a wonderful life. Just because I wasn't ready then, is no reason
orion tries and tries
but he cannot refute the fact that the supposed pro-lifers support killing babies when they are inconvenient. They really enjoy calling a fetus a "baby" but when it comes to killing babies, they're not so pro-life after all. They can rationalize killing babies quite well.
It's not apples and oranges.
keithb64840
Your problem is three comments have called you out and your apples to oranges comparisons and you've done nothing to counter those arguments except to re-quote you original statement. Additionally, stop taking things out of context and using one and two words to make your point.
It further vilifies your stance...
ABORTION & IN VITRO SAME???
I'm pro life. I would like to know though how abortion is the same as in vitro?? We had our last child by in vitro. They tried to fertilize 7 only 2 actually fertilized, both were transfered and only 1 took. How is that the same as abortion???? We brought a life into this world through in vitro and did not kill. Explain this to me.
"at her expense"
So it's acceptable to kill babies if you cannot afford them? Mighty good rationalization you have there.
What efforts did the supposed pro-lifers make to avoid the state killing the baby because it was an inconvenience to the state?
Michelle S. and elsie-eye...
So, using your examples, ALL pro-lifers want babies born and all pro-deathers (my accurate term for the majority of pro-choice) want all in-vitro children killed.
Your comment isn't illuminating, it's absolutist. Ironically, the only absolutes in the universe are life and death.
For the most part, pro-life individuals want the stop of birth-control abortion, the largest reason it is performed. My personal opinion is it should be used in reasons of fetal and mother's health. The dogmatic right pro-lifers are few and far between. You get your assertions from the media, an untrusted source.
As far as my pro-death classification, if you have an "accident" (no such thing) and have an abortion, you are making a premeditated decision to kill a living, developing human, therefore you are pro-death.
keith
Although I'm pro-choice and support the removal of life support in terminal cases at all times the Sun Hudson case has nothing to do with a woman's right to choose. Ms Hudson had the option of moving the baby, at her expense, to a facility. The fact tat she had made a legal case out of her child's care prevented the other facilities from accepting him for fear of financial retaliation. Sometimes a body isn't alive and the family refuses to accept that. Research the other cases associated with the Hudson case and you'll see that in all of them the families wouldn't accept the eventual death of their relative. We need to accept that death is inevitable in terminal cases. Without accepting that the survivors have a difficult time accepting and remembering.
cannot continue, orion?
Of course you "cannot" continue when you rationalize the deliberate killing of babies when they are an inconvenience.
Back to phrog...... show us the vast efforts made by the supposed pro-lifers against the deliberate killing of a baby who is an inconvenience to the state.
I am someone who has two
I am someone who has two children and has had an abortion. I would NEVER do that again, nor would I EVER suggest that for anyone. I DO REGRET MY ABORTION. I suffered physically and emotionally from my abortion!!!! I am no longer ashamed of it though. What I am posting is not that I have been pro life always, I was at one point apparently pro choice, and I would NEVER be again, I also wish that choice was NEVER there for me at the time I had my abortion! That is a child I don't have now, a sister/brother that other children don't have, a grandchild my parents don't have, a niece or nephew that my sister doesn't have. I hope that none of your children are ever faced with that decision and have to have you push them to KILL your GRANDCHILD. The guilt of YOU being the one that STOPPED their HEART from beating, it something you don't EVER want to deal with!!
re: subject matter, orion?
It's hard to debate a point Keith when you are talking apples to oranges. Abortion is in vitro. Most cases, unfortunately, are used as a method of birth control; a seemingly healthy fetus is killed because of a "mistake."
Your example is of a 6 month old baby with a fatal disease. What they did to him is what I did for my father, stopped the suffering.
I know you'll retort with the same blather twisted further; this being the case I cannot continue any debate with you. Bring something fresh to the table next time...
HOW?
How can you say it's OK to stop a heart from beating? Most abortions are done because the person does NOT want to be pregnant or pressure from family & or the father. With late term abortions the mother has already felt that baby moving MOST of the time. It's not that late term abortions are done for medical issues, etc. They are NOT. Some women don't find out they are pregnant until late. Second trimester or almost in the second trimester. Me myself didn't and I know many other women who did as well. Those women who don't want to be pregnant WILL have a late term abortion and have the babies brain sucked out just because of that. That crap about it being mostly medically necessary isn't true. Also, just because a baby has down syndrome does that mean there isn't a purpose for that child's life??? The doctor's aren't even always right when it comes to diagnosing that. THEY ARE WRONG SOMETIMES. You could kill a child because you THINK they have down syndrome but it may turn out they really don't. The test were wrong!
Michelle S.
That is one of the most interesting posts I have seen. Excellent analogy. I hope your thoughts will give the hardcore pro-lifers a little different view on what it means to be pro-choice.
Ok, I'll try this again...
since my comment yesterday was censored out for who knows what reason. For those of you who are pro-choice, I would ask that you do an internet search for Norma McCorvey, aka Roe of Roe v. Wade. You might be surprised what you'd dig up. Also, look for the book she wrote telling her story from her perspective. Great reading there.
subject matter, orion?
Killing babies is the subject matter according to the supposed pro-lifers. Don't whine........ Show us all the effort put forth by the supposed pro-lifers for a baby deliberately killed because he was an inconvenience to the state.
Phrog is Croaked!!
Phrog your position is indefensable so take your atitiude and your nanny government interventions and move to an island called Terra Pius where you and your croud and chant all you want. I don't think abortion is right, or moral, but we certainly don't need you, or my government, to tell me how to make choices. It's my relationship with my maker, not yours. You and your pius crowd can speak freely and "choose" to speak out on abortion; that's your right. It also our right to "choose," (an abortion) not your right to prevent.
Unable to grasp the subject matter?
keithb64840 wrote:
If pro-life really is pro-life, you'll show us how much effort the pro-life folks made to prevent the deliberate killing of baby Sun Hudson in Texas because he was an inconvenience to the state.
I love how individuals like to muddy the waters with stuff like this. This is pure hyperbole and has nothing relating to the topic at hand, especially considering the child was born with an almost fatal condition from a mother who was mentally deficient.
Keith, are you going to bring in the Terri Shiavo case next....?
phrog
If pro-life really is pro-life, you'll show us how much effort the pro-life folks made to prevent the deliberate killing of baby Sun Hudson in Texas because he was an inconvenience to the state.
usv
'late-term abortion' is not a media term; it is a medical term. however, 'partial-birth' abortion is a puposely inflammatory term invented by anti-choice propagandaists.
late term abortion is not just another option for lazy women who for no reason just sat around and then suddenly decided they no longer want to carry on with their pregnancy. people who are in their second trimester are for the most part people who wanted their pregnancy to come to term. therefore, a procedure to end the pregnancy must be something that is only called for if for some reason the pregnancy is discovered to be problematic for the developing fetus or the woman herself. this is usually the context in which a late term abortion is called for. any denial or attempt to ban such a procedure is a move to either endanger the lives of women or bring babies who cannot survive into the world. and yes it is a hard procedure. it's even valid to call it gruesome (yes i have seen first hand the bloody aftermath). i am not inhuman for my position on the late-term ban. i am only sober to the reality of life and how ugly and horrible it can sometimes be.
My humble apologies
To annes77739 and LocalFolks and the rest of the defenders of Pro-Choice, you are right and I was wrong. I apologize. It was so rude and inconsiderate of me to even try to defend that which has no defense. At least a convicted murdered who is in the death chamber had a defense. At least he or she had a fighting chance to live even though they committed a henous crime. How dare I try to appeal to the conscience of those who have no problem taking the life of the innocent. No matter how you manipulate, distort, or twist the words of the constitution, I would have thought that even the most humane of humanity would consider the moral ramifications of this practice. But, as I said, I am wrong. Dear God please forgive me for actually having a heart. Please turn it to stone so I may see as these wise defenders of abortion see.
State's Rights and the court is right!
I believe the abortion legality is a state's right issue. However, I do agree that late-term abortion is MURDER. I also believe if we make that legal we may as well make DOG fighting legal too!