HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, June 4, 2005

4th Circuit Strikes Down Virginia's Partial-Birth Abortion Law

The Washington Post reports this morning that the conservative U.S. Court of Appeals for the 4th Circuit yesterday ruled that Virginia's ban on partial-birth abortions is unconstitutional because it fails to make an exception to protect the health of the mother.  The majority opinion in Richmond Medical Center for Women v. Hicks was written by Judge M. Blane Michael and joined by Judge Diana Gribbon Motz (both Clinton appointees), with Judge Paul Niemeyer (appointed by Bush 41)dissenting.  The 2003 Virginia law (Va. Code § 18.2-71.1), resembles the federal partial-birth abortion ban (Pub. L. No. 108-105), which was passed the same year and also fails to provide an exception to protect the health of the mother.  Three district courts (in Nebraska, San Francisco, and New York)  have held the federal law to be unconstitutional, relying principally upon the Supreme Court's decision in Stenberg v. Carhart, which struck down Nebraska's partial-birth abortion ban primarily for its failure to provide an exception to protect the health of the mother.   

The ruling could hardly have come as a surprise, considering the previous 4 losses such statutes have racked up from the Supreme Court to the District Courts.  But, as the Post story makes clear, the ruling is grist for the political mill at a time when all of Washington officialdom is gearing up for the confirmation battle(s) in the wake of Chief Justice Rehnquist's expected resignation at the end of this Term.  Here's an example of the preliminary skirmish:

Supporters of the Virginia law said they were disappointed in the ruling and probably would introduce an amended version during the next General Assembly session, in January. State Sen. Ken Cuccinelli (R-Fairfax) linked the Virginia decision to the national dispute over President Bush's judicial nominees in anticipation of a possible vacancy on the U.S. Supreme Court.

"We've got a major problem and it's not with the legislature, it's with the courts," Cuccinelli said. "Because of these sorts of rulings . . . we get a bunch of judges that want to write their own policy into the Constitution."

The panel wrote that its decision was based on U.S. Supreme Court decisions and noted that its obligation was to that precedent. Citing a previous decision, the panel wrote: "But even if 'abortion [is] offensive to our most basic principles of morality . . . that cannot control our decision,' for our obligation is to apply the Supreme Court's definition of personal liberty, 'not to mandate our own moral code.'"


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