Virginia’s law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban has been upheld by the U.S. Supreme Court, an abortion-rights attorney told a federal appeals court Thursday.
A lawyer for the state disagreed, arguing that the two statutes are substantially alike and that the minor differences do not warrant invalidating the Virginia law.
At issue is the state’s 2003 law banning what abortion opponents call “partial-birth” abortion – a procedure in which the fetus is partially delivered before being destroyed. In a 2-1 ruling, a 4th U.S. Circuit Court of Appeals panel struck down the law in 2005.
The state attorney general’s office appealed that ruling to the U.S. Supreme Court, which returned the case to the 4th Circuit for another look in light of its decision on the federal ban. The same three-judge panel heard oral arguments Thursday and will rule in a few weeks.
The Virginia case is among the first that will show how lower courts will apply the Supreme Court’s ruling on the federal ban to similar state laws. In June, the 6th U.S. Circuit Court of Appeals struck down Michigan’s statute, saying it was broader than the federal law.
Stephanie Toti, a lawyer with the Center for Reproductive Rights, urged the 4th Circuit to reach a similar conclusion in the Virginia case. She said doctors performing a routine type of abortion called “dilation and extraction” would be at risk of accidentally violating the law.
“The only way to avoid the risk is to not do the D-and-E altogether,” Toti said.
Judge Paul V. Niemeyer, an appointee of President George H.W. Bush who dissented in the 2005 ruling, challenged Toti’s assertion, saying only deliberate violations are covered.
State Solicitor General William E. Thro said it was hard to fathom prosecutions for accidental violations, which he said would be so rare that invalidating the statute would be overreaching. He said the procedures described by Dr. William Fitzhugh, the Richmond physician who challenged the law, would not be illegal.
Judge M. Blane Michael, however, suggested that any chance of violating the law might deter abortion providers.
“Whether it’s three times out of 100 or whatever it is, that’s a big risk,” said Michael, who joined fellow Clinton appointee Judge Diana Gribbon-Motz in voting to strike down the Virginia law in 2005.
No matter which way the panel rules this time, the case is likely to be appealed either to the full appeals court or to the Supreme Court.
“We won’t stop,” Janet Crepps, legal director of the Center for Reproductive Rights, said after the 50-minute hearing. “We will do everything we can to make sure Dr. Fitzhugh can continue to provide safe, high-quality services.”
Thro said the attorney general has an obligation to defend the constitutionality of state statutes and would “weigh all the options carefully” if the law is invalidated.
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The case is Richmond Medical Center v. Herring.
