Court Upholds VA Partial-Birth Abortion Ban

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RICHMOND, VA — – The U.S. Court of Appeals for the 4th Circuit ruled Wednesday to uphold the constitutionality of Virginia’s partial-birth abortion ban. The full court reversed a previous decision by a three-judge panel that determined the ban was unconstitutional.

In the opinion issued Wednesday, the 4th Circuit concluded that “little or no evidence” exists to suggest the ban would prevent other types of abortions from being performed without subjecting doctors to criminal liability.

The court wrote, “To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstance presented … is not appropriate under any standard for facial challenges. Moreover, the Virginia Act … provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it, and therefore the Virginia Act is constitutional.”

In his concurring opinion, Circuit Judge J. Harvie Wilkinson wrote, “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. 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.”

“No one should be allowed to decide that an innocent life is worthless. Virginia has legitimately chosen to protect innocent life from a terrible procedure, and the court was right to uphold Virginia’s law,” said Alliance Defense Fund Senior Counsel Jordan Lorence. The ADF provided funding for friend-of-the-court briefs for the case.

“The decision of the three-judge panel conflicted significantly with the Supreme Court’s ruling two years ago that upheld the federal law banning partial birth abortion,” he continued.

In light of its decision to uphold the federal partial birth abortion ban in Carhart v. Gonzales, the U.S. Supreme Court ordered the 4th Circuit panel to reexamine its initial Sept. 7, 2007, decision that found the Virginia ban unconstitutional. The review resulted in a 2-1 split-panel decision, handed down May 20, which also ruled the ban as unconstitutional. Virginia then asked the entire 4th Circuit to hear the case.