Court Rehears Partial–Birth Abortion Ban Case

Special Report - October 30, 2008
On Tuesday, October 28, the 4th U.S. Circuit Court of Appeals, whose jurisdiction includes North Carolina, held an 80–minute hearing on the constitutionality of Virginia’s partial birth abortion ban. The Partial Birth Infanticide Act was passed into law in 2003. It outlaws the abortion procedure known as partial birth abortion and carries a felony penalty of up to 10 years in prison. The law has already been struck down by a three-judge panel of the appellate Court twice since the Center for Reproductive Rights brought the suit on behalf of Richmond Medical Center. Originally, in 2005, the statute was struck down because, in the Court’s opinion, it posed an undue burden on a woman’s right to an abortion.

In 2007, the U.S. Supreme Court upheld the similar federal Partial-Birth Abortion Ban Act of 2003 in Gonzales v. Carhart and remanded the Virginia case to the 4th Circuit Court of Appeals for reconsideration in light of the upheld federal statute. The panel of judges on the Appeals Court struck down the Virginia law in 2007, saying that it did not sufficiently and explicitly exempt doctors who accidentally perform a partial-birth abortion during a legal abortion procedure like the federal law did. Judge Paul V. Niemeyer dissented arguing that language in the statute requiring that the procedure be performed “knowingly” is sufficient to protect doctors from prosecution if a partial-birth abortion is performed accidentally.

Now the full 11 –judge 4th U.S. Circuit Court of Appeals is rehearing the case by request of the Virginia State Attorney General’s office. Stephanie Toti, attorney for the Center for Reproductive Rights argued that doctors can be convicted under the statute for accidentally performing a partial-birth abortion during a legal abortion procedure and this possibility of prosecution could discourage doctors from performing abortions. Virginia’s State Solicitor General William Thro argued that Virginia’s law is virtually identical to the federal ban that was upheld by the U.S. Supreme Court and the slim chance of accidental partial-birth abortions possibly being subject to prosecution is not sufficient grounds to strike the entire law.

In September, Americans United for Life filed a legal brief in support of Virginia’s ban. Staff counsel, Mailee Smith pointed out that “time and time again, the U.S. Supreme Court has affirmed that states have a significant interest in protecting women and children from the harm inherent in abortion. That is precisely what the Act does.” Tami Fitzgerald, staff attorney for the North Carolina Family Policy Council, says that “unlike Virginia, North Carolina has never passed a partial-birth abortion ban, even though the bill has been filed in the past. If the Virginia ban is upheld by the 4th Circuit, this would protect the ability of individual states to act to end this gruesome procedure.”

Copyright © 2008. North Carolina Family Policy Council. All rights reserved.