Court reviewing Virginia’s late-term law

RICHMOND | A federal appeals court heard arguments Tuesday on whether Virginia should be able to punish doctors who perform a type of late-term abortion that is already banned by federal law.

The full 4th U.S. Circuit Court of Appeals is weighing the constitutionality of a 2003 state law banning a procedure in which the fetus is partially delivered and then destroyed. Abortion opponents call the procedure “partial-birth abortion,” while doctors call it “intact dilation and evacuation.”

A divided three-judge panel of the court struck down the statute, which is similar to a federal law upheld by the U.S. Supreme Court last year.

During an 80-minute hearing before all 11 appeals court judges, state Solicitor General William Thro argued that the state law is virtually identical to the federal abortion ban.

Stephanie Toti, a Center for Reproductive Rights lawyer representing the abortion providers who challenged the law, countered that doctors can be convicted under the state statute if a standard second-trimester abortion accidentally becomes an intact dilation and evacuation.

Violations of the state law would be a felony punishable by up to 10 years in prison. Ms. Toti said the possibility of prosecution could discourage doctors from performing abortions.

Mr. Thro found support from Judge Paul V. Niemeyer, the dissenter in the 2-1 panel decision that overturned the Virginia law last May. He said the law clearly prohibits “knowingly performing” the procedure.

“Knowingly does not mean accidental,” Judge Niemeyer said.

The appeals court is expected to take at least several weeks to issue its ruling.

The panel majority said in its ruling that the federal law explicitly exempts a doctor who sets out to perform the standard procedure and that the Virginia law is unconstitutional because it does not include such an exception. Judge Niemeyer said in his dissent that the state law’s language on only a “knowing violation” is fundamentally the same thing.

However, Judge M. Blane Michael, who wrote the panel’s majority opinion, agreed with the plaintiffs’ position that Virginia law offers no protection to doctors who intend to perform a standard abortion but end up doing an intact dilation and evacuation because of unforeseen complications.

“It’s really different,” he said of the state law during Tuesday’s hearing. “When you put these two statutes together, they just don’t look the same or read the same.”

Attorney General Robert F. McDonnell said in a written statement that he was confident the court would uphold the law.

The same appeals court panel has struck down the Virginia law twice, initially in 2005. The U.S. Supreme Court ordered the second look after upholding the federal ban in June 2007, and the panel came back with the same decision.

According to the Center for Reproductive Rights, 16 of the 27 state bans on the late-term abortion procedure have been permanently struck down by the courts. Eleven state bans remain.

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