- The Washington Times - Thursday, June 25, 2009

RICHMOND | A sharply divided federal appeals court upheld Virginia’s ban on partial-birth abortion Wednesday, ruling that the statute does not unduly burden a woman’s right to terminate a pregnancy by more conventional means.

The 4th U.S. Circuit Court of Appeals said in a 6-5 decision that the 2003 law also makes clear the type of conduct that is banned, making it unlikely that a doctor would be prosecuted for accidentally performing the procedure, which has the medical term “intact dilation and extraction.”

The decision reversed a 2-1 panel ruling striking down the law, which is similar to a federal statute prohibiting a procedure in which the fetus is partially delivered, then its skull pierced and its brain destroyed.

“A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection,” Judge J. Harvie Wilkinson III wrote in concurring with the majority opinion.

Pro-choice supporters claimed Virginia’s statute was unconstitutional because the banned procedure was so broadly defined that it would prohibit the safest and most common form of second-trimester abortion. But the appeals court noted that the law specifically exempts the “dilation and extraction” procedure.

Judge M. Blane Michael wrote in a dissent that the Virginia law is unconstitutional because it imposes criminal liability on “any doctor who sets out to perform a standard D&E; that by accident becomes an intact D&E.;”

Violations of the state law would be a felony punishable by up to 10 years in prison.

Judge Paul V. Niemeyer wrote the majority opinion in the case, titled Richmond Medical Center v. Herring.

He was joined by Judge Wilkinson and Judges Dennis Shedd, Allyson Duncon,Karen Williams and Steve Agee.

Judge Michael was joined in the dissent by Judges Diana Gribbon Motz, William Traxler, Robert King and Roger Gregory.

Judge Michael also led the three-judge panel that 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 partial-birth abortion have been permanently struck down by the courts and 11 state bans remain.

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