Partial Birth Abortion Ban Struck Down in Virginia
Pro-choice activists are celebrating a victory in Virginia after the 4th U.S. Circuit Court of Appeals for the second time struck down the 2003 law banning partial birth abortions. The U.S. Supreme Court had ordered the court to re-examine its first ruling striking down the law and look at the 2007 Supreme Court decision in Gonzales vs. Cahart that upheld a similar federal law, according to the Legal Times.
The same three-judge appeals panel that first struck down the 2003 ban on partial birth abortions in Virginia examined the case for a second time and it was no surprise to many that they came to the same conclusion the second time around. The two liberal judges and one conservative judge panel voted in the same manner as they originally did, upholding their decision to strike down the partial birth abortion ban.
The Virginia Partial Birth Infanticide Act of 2003 has never taken effect due to the rulings of the appeals court.
The appeals panel decision ruled that Virginia law was more restrictive than federal law regarding abortions and therefore struck down the law in spite of the U.S. Supreme Court's decision to uphold the similar federal law. The judges felt that the Virginia law that banned partial birth abortions put doctors at risk of breaking the law in cases when a legal second-trimester abortion is performed using the standard D&E (dilation and extraction) procedure.
In some cases when a D&E is performed, the fetus is accidentally extracted intact, which under Virginia law is illegal. Under federal law, these accidents during the abortion procedure are not unlawful, but Virginia's law makes no exceptions. The court found that in the absence of an exception in the law for these intact extractions, the law placed an "undue burden" on a woman's right to have an abortion.
Partial birth abortions are performed via an intact D&E procedure during which the fetus is partially delivered and then the scull is crushed to ensure that it is not delivered while it is alive and to make the removal easier. Partial birth abortions can be done after 12 weeks of pregnancy up until the full term of the pregnancy. Prior to 12 weeks of gestation, abortions are performed using a D&E procedure in which the fetus is dismembered inside the womb and then extracted.
Abortion rights activists view the ruling as a victory, although Virginia may appeal the ruling to the state Supreme Court. After the first appeals court ruling that struck down the partial birth abortion law, the Supreme Court declined to hear the case and could again be reluctant to hear the issue. If the Virginia Supreme Court again rejects the case, Virginia may again try to push the case through the full 4th Circuit Court.
After the appeals court decision, pro-choice groups noted that other state laws banning partial birth abortion have also been overturned and the feeling is that the tide is turning against pro-life activists as courts remove hurdles that could prevent women from having complete control of their reproductive rights.
