Another abortion case developing
on Jun 24, 2009 at 10:29 pm
Two years after the Supreme Court last ruled on abortion restrictions, a new test case is likely on its way to the Court, perhaps reaching there by next Fall. Responding to an order by the Justices to take a new look at a Virginia abortion ban, the Fourth Circuit Court on Wednesday upheld the law. The en banc Court divided, 6-5, in sustaining the law against claims that it would criminalize the most common method of abortions performed in the second trimester.
The case of Richmond Medical Center, et al., v. Herring (Circuit docket 03-1821) is developing as a sequel to the Justices’ 5-4 ruling in 2007 in Gonzales v. Carhart, upholding a federal ban on a procedure its critics call a “partial-birth abortion.”  The Fourth Circuit’s opinion, concurrence and dissent can be downloaded here.
Twice, a divided Fourth Circuit panel struck down the state law known as the “partial-birth infanticide” law, enacted six years ago in Virginia. The law differs in some significant respects from the federal ban on “partial-birth” abortions that the Court upheld in the Carhart decision, and that difference was the key factor in both Circuit panel rulings.
The first of those panel decisions was set aside by the Supreme Court (docket 05-730) on April 23, 2007, for reconsideration in the wake of Carhart. After the panel once more nullified the law, the en banc Circuit Court set that aside and reconsidered the law’s validity, leading to Wednesday’s ruling. It rejected both a “facial” challenge — to the law as written, no matter in what situation it might be applied — and a challenge to its application to a Richmond doctor and his clinic.
While noting that the Supreme Court had increasingly frowned on “facial” challenges to legislation, the Circuit Court did not rule them out entirely when aimed at an abortion law, just as the Supreme Court has not forbidden such challenges. But the Circuit Court said that, no matter what standard is applied, the Virginia law satisfied it.
While the panel had said that there was a serious risk that the Virginia law, in practice, could criminalize a doctor’s procedure that violated the law simply by an accident, the en banc majority said “there is little or no evidence” of that in this case, although conceding that it might happen rarely.
The Virginia law, it said, is “somewhat different” from the federal ban, but still “provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it.”
The most significant difference between the Virginia ban and the federal ban is that, under the Virginia law, a doctor who intends to perform an abortion that does not violate the law, but the fetus accidentally is delivered intact to a significant degree, and if the mother’s life is not at stake, the doctor has committed a crime.
The Circuit Court’s dissenters argued that the majority ruling “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstiutional burden on a woman’s right to choose…[The law] violates the Constitution because it exposes all doctors” who perform a standard abortion to prosecution, conviction, and punishment, because it punishes violations of the law by mere accident.
