The federal 4th Circuit Court of Appeals will meet in its entirety (en banc) to rehear arguments on Virginia's partial-birth abortion ban after a three-judge panel of the same court overturned the law by a 2-1 decision.
One of the appeal issues is that the Virginia statute, unlike its federal counterpart, does not protect abortionists who set out to perform legally permissible abortions, but perform partial-birth abortions by accident.
The U.S. Supreme Court denied certiorari after the 6th Circuit struck down a similar Michigan statute in June, 2007. If the 4th Circuit decides en banc to uphold Virginia's statute, the High Court may grant certiorari in order to resolve the conflict between the circuits.
Full court will consider Virginia ban on 'partial-birth abortion'
By LARRY O'DELL
Associated Press
RICHMOND - A full federal appeals court agreed Monday to review a panel decision striking down a Virginia law banning a type of late-term abortion.
The state attorney general's office asked for the rehearing after a panel of the 4th U.S. Circuit Court of Appeals declared the ban unconstitutional on May 20. Oral arguments are expected in late October.
The law bans a procedure that abortion opponents call "partial-birth abortion." Judge M. Blane Michael wrote in the panel's majority opinion that the law is unconstitutional "because it imposes an undue burden on a woman's right to obtain an abortion."
An appeals court panel first struck down the statute in 2005. The U.S. Supreme Court ordered the court to take another look after upholding a similar federal abortion ban last year.
"We are pleased by today's decision that the full 4th Circuit Court of Appeals will hear this case for the first time," said J. Tucker Martin, a spokesman for Attorney General Bob McDonnell.
Stephanie Toti, the Center for Reproductive Rights lawyer who represented abortion providers in the case, said she was surprised the full appeals court decided to rehear the case "because the legal issues involved are fairly straightforward."
Abortion opponents claim the Virginia law is broader than the federal ban. One key difference between the two laws cited by the appeals panel in its 2-1 ruling: The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure, while the Virginia statute does not.
"The Virginia law is extreme in its application," Toti said. "It's basically a ban on a common method of second-trimester abortion."
Toti also noted that in June 2007, the 6th U.S. Circuit Court of Appeals declared Michigan's law unconstitutional because it could also prohibit other abortion procedures. The Supreme Court in January refused to review the decision.
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The case is Richmond Medical Center v. Herring.
On the Net:
The May 20 panel decision: http://pacer.ca4.uscourts.gov/opinion.pdf/031821A.P.pdf
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