- The Washington Times - Tuesday, February 3, 2004

RICHMOND — The author of the law banning partial-birth abortion said yesterday the federal judge who ruled the ban unconstitutional should be removed from the bench.

Delegate Robert G. Marshall, Prince William County Republican, called U.S. District Judge Richard L. Williams “foolish” for declaring void the state law he authored last year. The law made illegal partial-birth abortion, a rarely performed procedure done in the second or third trimester in which a fetus is partially delivered before being killed.

“The judge should explain how it’s OK to stab a child in the head,” Mr. Marshall said, offering his interpretation of partial-birth abortion. “He should be off the bench, impeached.”

The General Assembly last year passed the law by a wide margin. Gov. Mark Warner, a Democrat, tried to add an amendment that brought the woman’s health into consideration. But the General Assembly rejected the amendment, and the bill became law.

Judge Williams on Monday ruled that the law violated privacy rights and failed to make an exception for the health of the woman. He also challenged the use of the term “partial-birth infanticide” by Mr. Marshall and the law’s backers, saying it was an attempt to alarm the public.

Virginia Attorney General Jerry W. Kilgore, a Republican, called the law “common sense” and said he will appeal the ruling.

“Virginia absolutely has the right to define when a live birth has occurred, and our society should not allow the murder of babies just as they are inches away from drawing their first breaths,” Mr. Kilgore said in a statement. “The people of Virginia were right to tell their elected representatives to ban this barbaric procedure.”

Mr. Marshall said he thinks Mr. Kilgore should appeal the ruling all the way to the U.S. Supreme Court. Last year, the General Assembly passed the ban on what it called “partial-birth infanticide,” 76-20 in the House and 29-11 in the Senate.

Warner spokeswoman Ellen Qualls said the governor’s amendment last year would have protected the mother’s life or health.

“The judicial opinion rendered (Monday) substantiates the governor’s concern that the bill was unconstitutional,” Miss Qualls said.

Lt. Gov. Tim Kaine, a Democrat, echoed Mr. Warner’s sentiment. The court ruling “demonstrates the consequences of not following the law,” Mr. Kaine said in a statement. “For the second time in recent years, we’ve had to waste public tax dollars on private lawyers to defend unconstitutional legislation, only to now find ourselves back at square one.”

Delegate Richard H. “Dick” Black, Loudoun County Republican, said he is confident that Virginia will prevail in appellate court. He said, however, no significant strides will be made for his pro-life cause until President Bush makes his position clear.

“So far he’s been rather quiet on the issue of abortion,” Mr. Black said. “As long as the president remains silent, the courts can do what they will.”

Last November, Mr. Bush signed into law a partial-birth abortion ban, which immediately was challenged by a federal judge in Nebraska. The judge questioned the law’s constitutionality and expressed concern that the ban contains no exception for the mother’s health.

Mr. Black also criticized Judge Williams’ argument that the law is unspecific, and outlined the terms of the bill, which gives details on when abortion is legal and when it is not based on how much of the fetus had left the birth canal.

“I know of nothing the Nazis did that exceeded the brutality of partial-birth abortion. The judge cannot say in good faith this law is vague,” he said.

Lawyers for the Center for Reproductive Rights, who filed the lawsuit, argued that the law was unconstitutional because it dismissed a 2000 U.S. Supreme Court ruling that allows the procedure when the health of the mother is threatened.

The suit said Virginia’s “vaguely defined” ban could subject doctors to criminal prosecution for safely performing a common type of second-trimester abortion known as “dilation and evacuation,” as well as obstetrical procedures that help women suffering miscarriages.

About 30 states have enacted versions of so-called partial-birth abortion bans, but in many cases, they have been overturned in court.

In addition to Nebraska, the federal ban is being challenged in New York and California.

• This article is based in part on wire service reports.

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