Late-term abortion ban nixed by court

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RICHMOND -- A Virginia law banning a type of late-term abortion is unconstitutional because it lacks an exception to protect a woman's health, a divided federal appeals court ruled yesterday.

The decision by a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge Richard L. Williams of Richmond.

The Center for Reproductive Rights challenged a law passed by the 2003 Virginia General Assembly that bans a procedure generally performed in the second or third trimester, in which a fetus is partially delivered before being killed. People who oppose abortion call the procedure "partial-birth abortion." The Virginia statute called it "partial-birth infanticide."

Judge Williams blocked enforcement of the Virginia law on July 1, 2003, the day it went into effect, calling it a "no-brain case." Six months later, he granted the plaintiffs' motion for summary judgment and declared the law unconstitutional.

The Supreme Court struck down a similar Nebraska law in 2000 because it did not contain a health exception, the appeals court stated.

"Because the Virginia Act does not contain an exception for circumstance when the banned abortion procedures are necessary to preserve a woman's health, we affirm the summary judgment order declaring the act unconstitutional on its face," Judge M. Blane Michael wrote in the majority opinion, which was joined by Judge Diana Gribbon Motz.

Judge Paul V. Niemeyer said in a dissent the Virginia statute differs substantially from the Nebraska law because it makes it a crime to kill a "human infant who has been born alive, but who has not been completely extracted or expelled from its mother."

Opponents of the law argued that it was written so broadly that it would outlaw some of the most common and safe abortion procedures. They had the same criticism for a similar Virginia statute that was ruled unconstitutional five years ago.

"Today, yet another federal court has found these dangerous abortion bans unconstitutional because they not only fail to protect women's health, they shamelessly endanger it," said Priscilla Smith, a lawyer with the New York-based Center for Reproductive Rights.

Virginia Attorney General Judith Williams Jagdmann said she was disappointed in the court's decision, but noted there was a dissenting opinion among the three-judge panel. She also said the office will review the decision and determine the next appropriate step.

The state could ask the full appeals court or the Supreme Court to review the decision.