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A new test of a “partial-birth” abortion ban

In a new sequel to the Supreme Court’s ruling that for the first time allowed a ban on a method of abortion, the Fourth Circuit Court agreed on Monday to reconsider the constitutionality of Virginia’s five-year-old prohibition on abortion by the so-called “partial-birth” method. That law has never gone into effect, since it was successfully challenged immediately.  In seeking a new review, the state of Virginia asked the 11-member en banc Court to rule that abortion laws may not be challenged before they actually go into effect — a ruling that has the potential to affect abortion cases well beyond Virginia.

The Supreme Court majority, in the 5-4 ruling in Gonzales v. Carhart in April 2007, sought to discourage such so-called “facial attacks” on abortion laws, but in the end said it did not need to resolve the debate that has persisted for years over that question.

That question was one of three the state of Virginia raised on June 2 in asking the Circuit Court based in Richmond to reconsider a split panel decision on May 20 striking down in its entirety the 2003 Virginia “partial birth infanticide” law.  The panel had reconsidered an earlier ruling against the law, after the Supreme Court told it to take into account Gonzales v. Carhart.

In an order supported by a majority of its judges, the Circuit Court granted rehearing before the full bench, and tentatively set the case for oral argument in the last week of October.  Only if the Circuit Court moved very rapidly could the case be decided in time to get it before the Supreme Court for decision in its next Term that starts Oct. 6.

In seeking rehearing, the state argued that the Supreme Court has already “cast serious doubt on the viability of facial challenges…in the abortion context” when the claim is that an anti-abortion law sweeps too broadly.  Quoting language from the Carhart opinion, the state interpreted the Court to have said “in other words” that “the principles of judicial restraint require federal courts to adjudicate the constitutionality of abortion statutes on a case-by-case basis, not to make broad pronouncements regarding litigants and circumstances not before the court.”

In addition to that argument, the state said rehearing was necessary in the case of Richmond Medical Center v. Herring (Circuit docket 03-1821) in order to reinterpret the state ban in such a way that it would not make it a crime to perform the banned procedure, if doing so had been an accident rather than an intentional act. And, the state said, rehearing was necessary to avoid nullifying the state’s ban altogether, by limiting a remedy simply to lifting the ban only for cases of accidential violations.

Challengers of the ban, in their response on June 20, argued that the Supreme Court’s 2007 decision did not cast doubt on facial challenges to abortion laws. That ruling, the response said, “merely confirms a longstanding principle of constitutional adjudication — that [a challenger] cannot prevail on a facial challenge with evidence that is speculative.”

The response also argued that only one Circuit Court — the Fifth — has ruled that abortion laws cannot be challenge before they take effect (that is, “facially”) unless there are no circumstances in which the law could be validly enforced. By contrast, eight other Circuit Courts have refused to apply that rigorous test to abortion laws, that brief said.

The response also contended that there is no way a court can narrow the scope of the Virginia law without actually rewriting it, and thus “complete invalidation” is the only remedy after a finding that the ban sweeps too widely.

Only one other federal appeals court — the Sixth Circuit Court — has ruled on a “partial-birth” abortion ban in the wake of the Supreme Court’s 2007 decision.  The Sixth Circuit on June 4 of last year nullified a ban adopted by voters in Michigan. The state and a private advocacy group were denied review of that case by the Supreme Court on Jan. 7, although both appeals sought to raise only procedural issues, not the validity of the Michigan law.  The cases were STTOP v. Northland Family Planning Clinic (07-291) and Cox v. Northland Family Planning Clinic (07-313).

(NOTE: The Virginia petition for rehearing and the response to it can be found on the Fourth Circuit’s website by those with access to the PACER document system. The petition is document number 194 and the response is docket number 197.  The now-vacated panel opinion is docket number 192.)