Virginia late-term abortion ban remains unconstitutional

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