Virginia Attorney General Jerry W. Kilgore said yesterday he will appeal a federal judge’s decision to block enforcement of a new state law banning a rarely performed abortion procedure.
Mr. Kilgore, a Republican, said he will ask U.S. District Court Judge Richard L. Williams to suspend his order not to enforce the law pending an appeal to the 4th U.S. Circuit Court of Appeals. Mr. Kilgore said the motion “will be filed as soon as possible.”
“This law defines in a reasonable way when a live birth occurs, and Virginia’s fully within her rights to enact it. We are talking about a child that has all but been born,” Mr. Kilgore said. “The people of Virginia have rightly decided that partial-birth infanticide is wrong and the new law should be in effect immediately. I will leave no stone unturned in defense of this law.”
The new law is similar to the federal Partial-Birth Abortion Ban Act pending in Congress. It 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 law was to take effect Tuesday.
However, that day, Judge Williams ordered prosecutors David M. Hicks of Richmond and Wade A. Kizer of Henrico County not to enforce the law while a lawsuit challenging its constitutionality is pending. Mr. Hicks and Mr. Kizer are defendants in a lawsuit filed by the Center for Reproductive Rights (CRR).
CRR contends 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.
Pro-life advocates yesterday were confident the ban will be upheld in court.
“Nothing that a federal judge does at this point surprises me, but clearly this guy can’t read,” said state Delegate Robert G. Marshall, Manassas Republican who sponsored the legislation. “From the reports, he is not ruling on evidence, but he is basing it on ideology.”
Victoria Cobb, director of legislative affairs for the Family Foundation, expressed disappointment at the judge’s ruling, but was confident Mr. Kilgore would be successful.
“It is disappointing, but not unexpected, that those who have lost in the court of public opinion and lost in the legislature use the courts to circumvent the will of the people,” Mrs. Cobb said. “The attorney general has promised a vigorous defense of this law, and we trust his judgment that this law will withstand legal challenge.”
The General Assembly passed the ban on what it called “partial-birth infanticide” earlier this year, 76-20 in the House and 29-11 in the Senate.
Gov. Mark Warner, a Democrat, tried to amend the legislation to add a health exception. Lawmakers, however, rejected the amendment and passed the bill again by veto-proof margins.
Judge Williams scheduled the case to go to trial Nov. 4, the same day all 140 seats in the General Assembly are up for election. Mr. Kilgore asked for 120 days to review the case for the hearing, but his request was denied.
“I don’t know why you need 120 days for a no-brain case such as this,” Judge Williams said.
Mr. Marshall said he wrote the law in such a way that it could pass constitutional muster. He also argued that his bill was legal because Roe v. Wade — the 1973 U.S. Supreme Court case that made abortion legal — never addressed actions toward fetuses once they were out of the womb.
“There was no reason to strike this bill down,” he said. “It should go to the Supreme Court.”
Suzanne Novak, a staff attorney for CRR, disagreed.
“It might be a very different case if the law had banned a specific procedure. If the General Assembly had done that, there wouldn’t be a reason to challenge,” said Ms. Novak.
“This law threatened [doctors] ability to treat patients, even their ability to handle miscarriages,” she said. “The Virginia General Assembly knew what they had to do to make this a constitutional law and they chose not to … . We are confident the courts will agree.”
This article is based in part on wire service reports.