Court to Rehear Partial-Birth Abortion Case

Story

Special Report - August 5, 2008
The Court of Appeals for the 4th Circuit, whose jurisdiction includes North Carolina, has agreed to rehear a case involving the constitutionality of a Virginia law banning partial-birth abortion. The partial birth abortion procedure, also known as “intact dilation and extraction (D&E),” involves partially delivering an unborn baby before he or she is killed. In an order dated July 28, the federal appeals court voted 6 to 4 to review a decision issued earlier this year by a three-judge panel of the same court that struck down, for the second time, Virginia’s 2003 ban on the controversial late-term abortion procedure.

A three-judge panel of the 4th Circuit first considered the Virginia law in 2005, striking it down as unconstitutional. Two years later, the U.S. Supreme Court upheld the federal partial-birth abortion ban in its April 2007 Gonzales v. Carhart decision, sending the case involving Virginia’s law back to the 4th Circuit for review. In May 2008, a three-judge panel of the 4th Circuit upheld its 2005 decision, ruling that Virginia’s law—which is nearly identical to the federal ban—is “unconstitutional because it imposes an undue burden on a woman’s right to obtain an abortion.” Writing for the majority, Circuit Judge M. Bane Michael argued that, unlike the federal ban, Virginia’s law lacks a provision protecting doctors who do not set out to perform a partial-birth abortion but do so on “accident.” He wrote: “The Virginia Act thus imposes criminal liability on a doctor who sets out to perform a standard D&E that by accident becomes an intact D&E, thereby exposing all doctors who perform standard D&Es to prosecution, conviction, and imprisonment.”

According to the July 28 order, the federal appeals court will begin hearing oral arguments in the case Richmond Medical Center v. Herring this October.