A divided federal appeals court in Richmond today ruled in favor of Virginia's ban on partial-birth abortion, saying the law provides clear notices to doctors about the "rare circumstances" that will lead to liability. The U.S. Court of Appeals for the 4th Circuit, sitting en banc, reversed a panel decision that found the ban unconstitutional.
The 6-5 ruling went along party lines, with the court’s six Republican-appointed judges siding against the group of judges selected by a Democratic president. Judge Paul Niemeyer wrote the opinion for the majority, which included a concurring opinion by Judge J. Harvie Wilkinson III.
“The fact is that we—civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull,” Wilkinson wrote. “Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.”
Wilkinson further wrote that “it is unsettling to tamper with the most sacred of life’s cycles and disquieting for those here on earth to pull the ladder up on those who would join the human company.”
Writing in dissent, Judge M. Blane Michael said: “The Virginia Act violates the Constitution because it exposes all doctors who perform the standard (dilation and evacuation) to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E.”
The Center for Reproductive Rights, which represents the plaintiffs—Richmond Medical Center—issued a statement that criticized the 4th Circuit ruling. Staff attorney Stephanie Toti argued before the 4th Circuit.
“Today’s ruling is another stunning assault on women’s reproductive rights and on the doctors who provide abortion care,” Toti said in the statement. “Forcing doctors to compromise women’s health for the sake of a previable fetus with no potential for survival is an outrage.”
Virginia Attorney General Bill Mims said in a statement he was pleased with the 4th Circuit's decision. "This is a law that passed both houses of the General Assembly with bi-partisan support. While we anticipate that the U.S. Supreme Court may be asked to review the decision, I am confident that the Supreme Court ultimately will uphold the law.”
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