- The Washington Times - Wednesday, July 12, 2000

Virginia's attorney general said yesterday the state's law banning so-called partial-birth abortions should be allowed to stand despite the Supreme Court's recent ruling striking down a similar law in Nebraska.

Attorney General Mark L. Earley filed a motion Friday asking the U.S. 4th Circuit Court of Appeals to allow the law to remain in effect, arguing there are important differences between it and the Nebraska law.

"The attorney general's legal team has carefully reviewed the U.S. Supreme Court decision in the Nebraska partial-birth abortion case and has identified some important legal distinctions," said David B. Botkins, a spokesman for Mr. Earley.

Of the 31 states that currently have similar laws, Virginia is the only one challenging the ruling. Florida's attorney general has declined to contest it, West Virginia saw its law struck down last Friday by the 7th Circuit Court of Appeals, and Wisconsin and Illinois have both had their laws blocked from going into effect due to the high court's ruling.

Mr. Earley filed the motion in response to the Center for Reproduction Law and Policy's request that the 4th Circuit lift an order that has allowed the law to stay in effect while under challenge.

The group representing Richmond Medical Center and Planned Parenthood, among others filed the request just two days after the Supreme Court's June 28 ruling, which said the Nebraska law was too vague and made no exception for the health of the mother.

In the brief, the group said since the language in both Nebraska and Virginia's statutes are "virtually indistinguishable," the appeals court should lift the order, which would void Virginia's partial-birth abortion law.

Virginia's General Assembly passed the law in 1998, but a U.S. District Court judge in Richmond ruled it unconstitutional last year. The state appealed to the 4th Circuit, which hasn't yet scheduled a date for arguments. The appeals court has let the law remain in effect while it considers the case.

In a 5-4 decision in Stenberg vs. Carhart last month, the Supreme Court ruled that Nebraska's law banning dilation and extraction abortions commonly called partial-birth abortions violated guidelines the court set forth in 1973's Roe vs. Wade and 1992's Planned Parenthood vs. Casey.

The majority ruled that Nebraska's law was vague and could be read to ban dilation and evacuation abortions the most common type of second-term abortion. The court also ruled the law must have an exception for the health of the mother.

Mr. Botkins said the attorney general also filed the motion because he believed the Supreme Court erred in its decision.

"The law passed before the Supreme Court did what they did," Mr. Botkins said. "The people of Virginia have an expectation that laws that pass will take effect. It's our job to defend those statutes."

But the lawyer who argued the Nebraska case before the Supreme Court said he thinks Virginia is fighting a no-win battle.

"The idea that these two laws are different is preposterous," said Simon Heller, litigation director for the abortion-rights legal and policy center. "All of these laws were basically the same language."

Mr. Heller said he thinks Mr. Earley a possible Republican candidate for governor in 2001 is taking this action to please the "radical, right wing" in the state.

"It's extremely aggressive on the part of the attorney general of Virginia," Mr. Heller said. "The attorney general in Virginia will do everything in his power to erode access to abortion in Virginia."

Mr. Heller said he will file a reply to Virginia's motion later this week, pointing to the law's broad language defining the procedure as making it unconstitutional because it, like the Nebraska law, could ban legally protected abortions. The motion will also note the court's displeasure with the lack of a clause in Nebraska's law that allows for the abortion to be performed when the mother's life or health is threatened.

Virginia's law does not include such language, either.

The author of the law, state Sen. Steve Newman, Lynchburg Republican, said he is encouraged by the attorney general's action.

"I believe that this is one of the most inhumane decisions the Supreme Court has ever made," Mr. Newman said. "If the decision stands, there is a reasonable question as to whether infanticide has been given an opportunity to become lawful."

Should the law be overturned by the appeals court, Mr. Newman said he and other lawmakers will work on crafting a law that may withstand the court's scrutiny.

Mr. Newman said he would refuse to insert a provision in a new law that would allow the procedure to protect the health of the mother.

"No. I hope that we never pass a bill that includes a health exception. I don't feel like the law would be of any value," he said, explaining that a "health" clause in the legislation could open it up to loopholes women could use to get an abortion even if their life is not endangered.

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