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Fourth Circuit upholds Virginia 'partial birth' abortion ban

[JURIST] The US Court of Appeals for the Fourth Circuit [official website] upheld [opinion, PDF] a Virginia law [Va. Code Ann. § 18.2-71.1] Wednesday that bans "partial birth" abortions [JURIST news archive], reversing previous rulings that found it unconstitutional. The appeals court initially affirmed [opinion, PDF; JURIST report] the district court's ruling that the law was unconstitutional. Then, after the case was remanded by the US Supreme Court [official website] following their 2007 decision in Gonzalez v. Carhart [opinion, PDF; JURIST report], the Fourth Circuit reaffirmed [opinion, PDF; JURIST report] its previous ruling. The court then granted the Commonwealth of Virginia's motion to rehear the case en banc and reversed its previous decisions, upholding the law. The challenge was originally brought by the Richmond Medical Center and its medical director who alleged that the Act "impermissibly failed to include an exception for the preservation of the mother’s health" and defined "partial birth infanticide" broadly enough to ban the dilation and evacuation (D&E) [WebMD backgrounder] method of second trimester abortion, imposing an undue burden on the pregnant woman. Although the Fourth Circuit initially found the law unconstitutional because of the criminal liability it imposed on a doctor who set out to perform a lawful D&E if it became an intact D&E by accident, the majority of the en banc court found that the "overt act" requirement avoided any such liability. Additionally, the court found that Act provided sufficient notice of what conduct is prohibited and that the medical director's as-applied challenge was not backed up with sufficiently concrete circumstances, recognizing that the Act is "open to a proper as-applied challenge in a discrete case." Discussing the undue burden analysis that the courts use in abortion cases, the majority compared the case to Carhart and held that:

the Virginia Act, while different from the Federal Act, which was upheld in Gonzales v. Carhart, nonetheless provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability. Accordingly, it does not impose an undue burden on a woman’s right to choose an abortion and is therefore constitutional.
The dissenting justices believed that the majority's opinion departed from Supreme Court precedent:
The majority’s decision to uphold the Virginia abortion ban challenged here (the Virginia Act) marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstitutional burden on a woman’s right to choose. Gonzales v. Carhart..., and longstanding precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment.
US Supreme Court precedent, as seen in Planned Parenthood v. Casey [opinion text], holds that prohibitions on a woman's right to an abortion are not allowed if they impose an "undue burden."

Abortion continues to be an extremely controversial issue. Earlier this month, US Attorney General Eric Holder [official website] said that appropriate steps would be taken [statement; JURIST report] to help prevent acts of violence related to the shooting of abortion doctor George Tiller [BBC profile], who performed late-term abortions at his clinic in Kansas. In November, California and South Dakota voters rejected ballot measures [JURIST report] that sought to restrict access to abortion. The California measure attempted to amend the state constitution to require that a physician notify a parent or legal guardian of an unemancipated minor seeking an abortion and imposed a 48 hour waiting period. The South Dakota proposed law sought to prohibit abortion except in cases of rape, incest and "substantial and irreversible risk" to a woman's health. The D&E abortion procedure, according to the court, is a common procedure for second and third trimester abortions. A standard D&E, which is performed in utero, is explicitly excepted from the kinds of procedures banned by the Virginia law. But an "intact" D&E is what opponents refer to as "partial birth" abortion, and occurs when certain "anatomical landmarks" exit the womb during the procedure, which can accidentally occur during a planned "standard" D&E procedure.

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