Court of Appeals Upholds Virginia Late Abortion Ruling

A 2008 court decision which declared unconstitutional a Virginia ban on a specific abortion procedure was overturned yesterday by the Fourth District US Court of Appeals in a split 6 to 5 decision. The so-called “Partial Birth Infanticide Act of 2003” was declared unconstitutional in a 2008 2 to 1 panel ruling because it is more restrictive than the federal ban on late abortion.

Lawyer Stephanie Toti, representing the reproductive healthcare providers who challenged the ban, has not stated whether they will file an appeal with the Supreme Court, according to the Associated Press. She told the Washington Post, “This decision is yet another assault on women’s constitutional rights and the protections long afforded to women’s health…It puts doctors in a really untenable position because it forces doctors to choose between taking all the steps necessary to protect their patients and committing a felony.”

The majority opinion (see PDF) states that the law, passed in 2003 by a bi-partisan general assembly, “sufficiently cabins the narrow set of situations in which a doctor could incur criminal liability and therefore does not impermissibly chill the performance of allowed procedures.”

Judge M. Blane Michael wrote in a dissenting opinion that “because of the real fear of criminal liability [resulting from the decision], doctors in Virginia will stop performing standard [dilation and extraction procedures] altogether. This result places an undue burden on a woman’s right to obtain a pre-viability second trimester abortion-a constitutional right repeatedly reaffirmed by the Supreme Court.”


Washington Post 6/25/09; Associated Press 6/25/09; US 4th Circuit Court of Appeals 6/24/09; Feminist Daily Newswire 5/21/08

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