- The Washington Times - Tuesday, July 1, 2003

RICHMOND — A Virginia law banning a rarely performed abortion procedure was on the books for just over half a day yesterday before a federal judge blocked its enforcement.

U.S. District Judge Richard L. Williams granted a preliminary injunction sought by the Center for Reproductive Rights, which has filed a lawsuit challenging the constitutionality of a state law similar to the federal Partial-Birth Abortion Ban Act pending in Congress.

The law, which took effect yesterday along with a raft of other bills passed by the 2003 General Assembly, prohibits doctors from knowingly killing a fetus once its head has emerged from the birth canal or, in a feet-first birth, the fetus has emerged as far as its navel.

The Center for Reproductive Rights contends that the law violates a 2000 U.S. Supreme Court ruling that protects certain procedures in cases where the mother’s health is in danger. The law does not include an exception to protect the mother’s health.

Judge Williams set a Nov. 4 trial date on the lawsuit, grudgingly agreeing to a request from the Attorney General’s Office for at least 120 days to prepare.

“I don’t know why you need 120 days for a no-brain case such as this,” Judge Williams said.

Suzanne Novak, attorney for the plaintiffs, said the ruling is a victory for women and for doctors performing abortions in Virginia.

“There’s no way this law can be constitutional and no way in the end that it can be upheld,” Miss Novak said after the hearing.

She said her clients will ask the judge to strike down the law before it goes to trial. “I think we have a good chance on summary judgment,” Miss Novak said.

Attorneys for the state did not immediately say whether they will ask the 4th U.S. Circuit Court of Appeals to set aside the preliminary injunction.

“We will make a decision after we see the order and have time to study it,” said Tim Murtaugh, spokesman for Attorney General Jerry W. Kilgore.

“The attorney general is committed to vigorously defending the statute from this challenge,” he said. “We feel it is absolutely constitutional, duly passed by the elected representatives of the people.”

The case was originally assigned to U.S. District Judge Robert E. Payne, who struck down a similar Virginia law in 1998. His ruling was upheld by the federal appeals court after the Supreme Court invalidated a similar Nebraska statute.

The state filed a motion Monday asking that the case be reassigned, arguing that the court violated its own procedures for random assignment of cases. The court clerk had assigned the case to Judge Payne after the plaintiffs indicated on a form that he had presided over a related case.

Judge Payne said that to ensure public confidence in the system, he thought it best to have the clerk randomly reassign the case.

“I don’t mean to fault the plaintiffs or say they were judge-shopping,” Judge Payne said. “I’m not accusing you of doing anything improper.”

The case was sent to Judge Williams, who suggested the state voluntarily suspend enforcement until he could conduct a hearing next week on the preliminary injunction. Lawyers for the state called Mr. Kilgore, who declined the offer, and Judge Williams went ahead with the hearing.

The lawsuit says that the “vaguely defined” ban could subject doctors to criminal prosecution for safely performing second-trimester abortions, as well as common obstetrical procedures such as assisting women who are having miscarriages.

Edward McNelis III, special assistant attorney general, argued that the law “is not a proscription on abortion,” but a ban on infanticide because it prohibits destroying a fetus that has substantially emerged from the birth canal. He added that the law specifically exempts the type of abortion, called dilation and evacuation, that the plaintiffs claim could be affected.

Gov. Mark Warner tried to amend the bill during the General Assembly’s reconvened session in April to add a health exception. Lawmakers soundly defeated the amendment, then passed the bill with a vetoproof margin.

Some 30 states have enacted versions of “partial birth” bans, but pro-choice groups said they succeeded in court challenges in about 20 states.

The federal bill has passed both chambers of Congress, but minor differences are being worked out in conference. President Bush has said he will sign the measure, which also is likely to face a constitutional challenge.

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