Court to review abortion ruling

Ban on partial-birth procedure, voided in May, to get 2nd look

By Gary Emerling (Contact) | Tuesday, July 29, 2008

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A federal court said Monday it will review the constitutionality of a Virginia law prohibiting a type of late-term abortion.

The full 4th U.S. Circuit Court of Appeals agreed to review a previous panel's 2-1 decision in May that declared the statute unconstitutional. The ruling came after the U.S. Supreme Court upheld a similar federal ban last year.

Advocates for the law - including Attorney General Robert F. McDonnell, whose office requested the review in June - cheered the court's decision to hear the case.

Mr. McDonnell, a Republican running for governor next year, said the state's law was "substantively similar" to the federal ban upheld by the country's highest court.

"I am hopeful that the full court will overturn the earlier, divided-panel decision, and Virginia´s partial-birth, infanticide ban will be found to be constitutional," he said.

A court panel initially struck down the law - which bans a procedure abortion opponents call "partial-birth abortion" - in 2005, two years after it was passed by the Virginia General Assembly. The Supreme Court in 2007 then sent the issue back to the circuit court for reconsideration.

In its decision to uphold the ruling in May, the court cited a key difference between the federal and state bans on the procedure. The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure, while the Virginia statute does not provide such a protection.

Judge M. Blane Michael, a 1993 appointee of President Clinton, also wrote in the panel's majority opinion that the law is unconstitutional "because it imposes an undue burden on a woman's right to obtain an abortion."

Stephanie Toti, a staff lawyer with the Center for Reproductive Rights - which initially challenged the Virginia law in 2003 - said the lack of legal safeguards for doctors prevents them from performing common second-trimester abortions and separates the state and federal statutes.

"I'm somewhat surprised that the court has decided to rehear this case en banc, because I thought that the issues involved were fairly straightforward," Ms. Toti said. "The Virginia law is extreme and far broader in scope than the federal abortion ban."

However, Olivia Gans, president of the Richmond-based Virginia Society for Human Life, called the court's decision "a very positive thing for pro-life Virginians."

"The panel's decision was out of step with what the majority of Virginians thought was a reasonable piece of legislation to begin with," she said.

Oral arguments in the case are expected to begin in late October.

This article is based in part on wire service reports

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