Infanticide in Virginia

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What happens when a court constitutionalizes infanticide? We ask the question because a federal appeals court in Virginia appears to have done just that.

In a contentious 2-1 decision last week that places Virginia in the hot seat of the abortion debate, the 4th U.S. Circuit Court of Appeals in Richmond threw out Virginia's partial-birth abortion ban, sanctioning the actions of an abortionist plaintiff who crushes the heads and dismembers the arms and legs of infants as they emerge from the womb. The law the court struck down was similar to the partial-birth abortion ban Congress passed in 2003 and was one of the most reasonable attempts by a state legislature anywhere to end this barbaric procedure. But the court blocked it, thus giving its approval to a practice a large majority of Americans rightly regard as murder.

Unlike a much-discussed Nebraska bill that would have prohibited a number of abortion procedures, this Virginia law focused narrowly on protecting the infant itself as it is being delivered. It allowed several procedures that the Nebraska law would have banned and made an exception for cases where the mother's life is at risk. None of that stopped the court from ruling that the law's clause to protect the life of mothers was inadequate.

The "infanticide" claim doesn't originate with us; it comes from Judge Paul V. Niemeyer, one of the three justices who sits on the court. In his 27-page dissent, Judge Neimeyer calls the ruling "a bold, new law that, in essence, constitutionalizes infanticide of a most gruesome nature." In some uncommonly harsh words for his colleagues, Judge Niemeyer called the ruling "unfit for the laws of a people of liberty" and said it "unnecessarily distances our jurisprudence from that of the Supreme Court and from general norms of morality." To give readers a sense of the other side, Judge Niemeyer quotes the plaintiff, Dr. William Fitzhugh, describing his work. "My job on any given patient is to terminate that pregnancy, which means that I don't want a live birth."

The public has spoken on partial-birth abortion. Time and again in polls, between half and two-thirds of Americans say they oppose the practice. The numbers change depending on how the question is phrased or when it is asked, but there's no denying a massive base of opposition exists. It's more than the religious right: According to one 2003 Los Angeles Times poll, 53 percent of Democrats and 56 percent of independents favored laws to make partial-birth abortion illegal. Clearly the public doesn't want what the 4th Circuit is content to sanction. Virginia lawmakers need to craft another partial-birth abortion ban.