Virginia law on abortion is struck down

WASHINGTON — A federal appeals court in Richmond on Tuesday again declared Virginia's abortion law unconstitutional, saying it is more restrictive than the federal ban on late-term abortion that the Supreme Court approved last year.

The U.S. Court of Appeals for the 4th Circuit never allowed the 2003 Virginia law to take effect, but the Supreme Court last year ordered it to re-examine the law in light of its own decision upholding the federal ban on a type of late-term abortion opponents call "partial-birth abortion."

Since that April 2007 ruling, federal appeals courts have struck down abortion laws in Michigan and Virginia, saying they go beyond what the Supreme Court approved.

In Richmond, the same three-judge panel that overturned the law in 2005 repeated its 2-1 decision Tuesday, saying the only way a doctor could be certain he or she would not be prosecuted under the law was to stop performing abortions.

"The Virginia act imposes an undue burden upon a woman's right to choose a previability second-trimester abortion," Judge Blane Michael wrote. He was joined by Judge Dianna Gribbon Motz.

Dissenting Judge Paul Niemeyer accused his colleagues of exploiting minor differences between Virginia's act and the federal ban to find reasons to reject it.

The Supreme Court's ruling was seen as a shift for the justices, who in a 5-4 vote for the first time allowed a specific abortion procedure to be banned and approved an abortion law that did not contain an exception for the health of the woman.

"We're very pleased that the [4th Circuit] recognized that the Virginia statute was extreme," said Stephanie Toti, who argued the case on behalf of the Center for Reproductive Rights.

The Virginia law bans "intact dilation and extraction" (D&E), which along with a standard D&E is used to terminate pregnancies after about 12 weeks. Up to 90 percent of abortions occur before then.

In a dilation and extraction, which remains legal, the fetus is dismembered within the womb, while in an intact procedure, the fetus is partially delivered and the skull is crushed to make removal easier.

Abortion-rights supporters and many doctors argue that the latter procedure is sometimes needed to preserve a woman's health, while those who oppose abortion — and Congress, in passing the ban — said it is not.

What concerned the judges about the Virginia law is something the state acknowledged was possible: an "accidental" intact D&E that can occur when a doctor is performing a standard procedure.

Michael wrote that while the federal law protects a doctor who did not set out to perform an intact D&E, the Virginia statute does not.

The only way to avoid the risk, Michael continued, is to avoid performing second-trimester abortions, and that would impose an "undue burden" on a woman's right to terminate her pregnancy.