Virginia Attorney General Bob McDonnell announced today he will seek en banc review by the U.S. Court of Appeals for the 4th Circuit of a recent decision striking down the commonwealth's partial birth abortion law.
"Given the significance of the issues at stake, and the fact that the United States Supreme Court recently upheld a very similar federal ban on the procedure," McDonnell said in a news release, "the full court should review the ruling by the divided three-judge panel."
In a 2-1 decision issued May 20 in the case Richmond Medical Center v. Herring, an appeals panel said Virginia's law imposed an "undue burden" on the right to an abortion. It did so, the panel reasoned, because its wording exposes all doctors to criminal liability in late-term abortions even those who did not intend to perform the illegal procedure but did so by accident.
Abortion groups had celebrated the panel decision as a sign that lower courts were still scrutinizing state abortion laws even though the Supreme Court in last year's Gonzales v. Carhart upheld the federal law banning partial-birth abortions. Virginia might fare better before the full 4th Circuit.