Fourth Circuit Upholds Virginia "partial-birth" abortion ban

In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional.  In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:

We now conclude that insofar as Dr. Fitzhugh mounts a
facial challenge against the Virginia Act, the challenge fails
because
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2)  the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
and
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.

The court also rejected the as-applied challenge because Fitzhugh "has not presented sufficiently concrete circumstances in which the as- applied challenge can be resolved, recognizing that '[t]he Act is open to a proper as-applied challenge in a discrete case,' "  quoting Gonzales v. Carhart, 550 U.S. at 168.

The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context.  Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late.  Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."

The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).



RR