A federal appeals court ruled Tuesday that Virginia’s ban on partial-birth abortions is unconstitutional and imposes an undue burden on a woman’s right to an abortion.
The U.S. Supreme Court had ordered the appeals court to reconsider the ban after issuing a decision last year saying the federal Partial-Birth Abortion Ban Act was constitutional.
But the U.S. Court of Appeals for the 4th Circuit in Richmond ruled 2-1 that Virginia’s ban went beyond what the high court approved.
The appeals court found Tuesday that the Virginia act unconstitutionally criminalizes a doctor who sets out to perform a legal procedure known as a “standard” dilation and extraction, but ends up having to perform an “intact” dilation and extraction.
“The Virginia Act is therefore unconstitutional because it imposes an undue burden on a woman’s right to obtain an abortion,” Judge M. Blane Michael said.
Dissenting Judge Paul Niemeyer wrote that the panel’s opinion “constitutionalizes infanticide of a most gruesome nature.”
Virginia Attorney General Robert McDonnell on Tuesday was reviewing the panel’s opinion and considering the options, said spokesman J. Tucker Martin.
“We are extremely disappointed with the divided decision,” Martin said.
The state has 14 days to ask for a rehearing before the full appeals court or 90 days to petition for an appeal to the Supreme Court, according to legal experts.
In a standard dilation and extraction, which remains legal, the fetus is dismembered within the womb. In an intact procedure, the fetus is partially delivered and the skull is crushed to make removal easier.
The intact procedure is sometimes needed to preserve the health of the mother, according to abortion rights advocates and many doctors.
A critical holding by the Supreme Court was that a doctor was only liable if he intended at the outset to perform the illegal intact procedure.
The Virginia law provides no protection to the doctor who accidentally has to perform the intact procedure, making it a felony punishable by a prison term of up to 10 years.
