Partial-Birth Abortion: Back to the Supreme Court?
What next for Virginia's partial-birth abortion law? The typically conservative U.S. Court of Appeals for the 4th Circuit struck down the 2003 law for the second time on Tuesday — even though the Supreme Court had ordered it to reexamine its earlier ruling in light of its own 2007 decision upholding a similar federal law.
Tuesday's decision was not actually a surprise. As previewed in Legal Times last October, abortion rights advocates were optimistic in part because the case was going to be heard by the same panel that had struck it down the first time — M. Blane Michael and Diane Gribbon Motz, viewed as liberals, and conservative Paul Niemeyer. Sure enough, on Tuesday Michael and Motz voted as they had before, and Niemeyer dissented again.
In spite of the intervening Supreme Court decision, the panel majority found that the Virginia law was stricter that the federal law, in a way that that puts all physicians at risk of violating the law when they embark on a legal abortion using the standard D&E procedure for second-trimester patients. Sometimes, Michael explained, the procedure can by accident turn into an illegal intact D&E without the doctor intending to break the law. The federal statute allows for such accidents, while Virginia's law makes no exception — thereby posing an "undue burden" on a woman's abortion right.
Abortion rights groups celebrated, noting that other state laws have also fallen in spite of the Supreme Court ruling. “Federal courts are seeing through these thinly veiled attempts to undermine women’s ability to obtain an abortion,” said Nancy Northup, president of the Center for Reproductive Rights, which challenged the Virginia law on behalf of the Richmond Medical Center for Women. “Lower courts are providing a crucial backstop against anti-choice forces using the Supreme Court’s recent ruling to ride roughshod over women’s health.”
Virginia has a choice of appealing to the 4th Circuit en banc, or appealing to the Supreme Court. The en banc route was tried but rejected last time around. The Supreme Court might be reluctant to visit the issue yet again, so the commonwealth may try the full 4th Circuit once more.
Tuesday's decision was not actually a surprise. As previewed in Legal Times last October, abortion rights advocates were optimistic in part because the case was going to be heard by the same panel that had struck it down the first time — M. Blane Michael and Diane Gribbon Motz, viewed as liberals, and conservative Paul Niemeyer. Sure enough, on Tuesday Michael and Motz voted as they had before, and Niemeyer dissented again.
In spite of the intervening Supreme Court decision, the panel majority found that the Virginia law was stricter that the federal law, in a way that that puts all physicians at risk of violating the law when they embark on a legal abortion using the standard D&E procedure for second-trimester patients. Sometimes, Michael explained, the procedure can by accident turn into an illegal intact D&E without the doctor intending to break the law. The federal statute allows for such accidents, while Virginia's law makes no exception — thereby posing an "undue burden" on a woman's abortion right.
Abortion rights groups celebrated, noting that other state laws have also fallen in spite of the Supreme Court ruling. “Federal courts are seeing through these thinly veiled attempts to undermine women’s ability to obtain an abortion,” said Nancy Northup, president of the Center for Reproductive Rights, which challenged the Virginia law on behalf of the Richmond Medical Center for Women. “Lower courts are providing a crucial backstop against anti-choice forces using the Supreme Court’s recent ruling to ride roughshod over women’s health.”
Virginia has a choice of appealing to the 4th Circuit en banc, or appealing to the Supreme Court. The en banc route was tried but rejected last time around. The Supreme Court might be reluctant to visit the issue yet again, so the commonwealth may try the full 4th Circuit once more.
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