Virginia abortion law upheld by 4th Circuit; appeal to U.S. Supreme Court likely

By: Tyler Whitley | Times-Dispatch
Published: June 25, 2009

A federal appeals court in Richmond voted today to uphold Virginia's 2003 law that bans a type of late-term abortion, which means the case might be headed for the U.S. Supreme Court.

The 6-5 ruling reversed two 2-1 rulings by a panel of the appeals court. The panel had struck down the Virginia law, which prohibits what opponents of the procedure call "partial-birth abortion."

University of Richmond law professor Carl Tobias said the "very close opinion on a highly controversial, important issue" will likely be appealed and reviewed by the U.S. Supreme Court.

State Attorney General Bill Mims said the Virginia ban passed both houses of the General Assembly with bipartisan 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."

Mims noted that Attorneys General Jerry W. Kilgore, Judith Jagdmann, Bob McDonnell and he have defended the statute over the past six years. McDonnell, now the Republican nominee for governor, asked the full court last year to reconsider the case. He issued a statement today praising the decision.

Victoria Cobb, president of the anti-abortion Family Foundation, said the Virginia law substantially follows the federal law that has been upheld by the U.S. Supreme Court so "we were confident that the full 4th Circuit would uphold this common sense, widely supported ban."

Stephanie Toti, who argued the case before the full 4th Circuit on behalf of the Center for Reproductive Rights, a supporter of abortion rights, said she had just received the opinion. "We are still evaluating our options with regard to the next step," she said.

Courtney Jones, manager of grassroots organizing for the Virginia League of Planned Parenthood, said the league was not a party to the suit but is disappointed at the ruling.

"We do believe that the court's opinion will place an undue burden on women," she added. "We would hope the court would stop playing politics with women's health."

Olivia Gans, president of the Virginia Society for Human Life, hailed the ruling, saying: "There is no doubt that the Virginia's partial birth abortion infanticide ban will save the lives of hundreds of Virginia babies from this horrible and violent procedure."

According to the arguments before the court in October, the most common abortion method during the second trimester is the dilation and evacuation procedure, or D&E, in which the fetus is destroyed in the uterus. The Virginia ban bars "intact D&Es," in which an intact fetus is destroyed after it is expelled or partially expelled.

William E. Thro, a former Virginia solicitor general who argued the case for the state in October, told the court that the Virginia act is constitutional. He said it prohibits the same thing as a federal law that the U.S. Supreme Court has upheld.

But one of the appeals court judges, M. Blane Michael, said in October that under the Virginia law a physician who intends to perform a regular D&E could face prosecution if it accidentally turned into an "intact D&E."

"He faces a credible threat of prosecution every day he performs one of these," Michael said then.

But Thro said the Virginia law did not apply to accidental intact D&Es.

Contact Tyler Whitley at (804) 649-6780 or twhitley@timesdispatch.com.