Virginia Lawyers Weekly

A sharply divided 4th U.S. Circuit Court of Appeals upheld the constitutionality of Virginia’s partial-birth abortion law last Wednesday.

The 6-5 majority rejected the contention of the Richmond Medical Center for Women and a Richmond obstetrician that the act is unconstitutional because it fails to include an exception for the preservation of the mother’s health and defines “partial birth infanticide” so broadly that it criminalizes the safest and most common method of second-semester abortion.

The Virginia law cannot be distinguished in any relevant way from the federal partial-birth abortion law that the U.S. Supreme Court upheld in 2007, the majority said.

The Virginia law was enacted in 2003 but invalidated by an earlier 4th Circuit opinion that was appealed to the Supreme Court.

After ruling on the federal act, the Supreme Court remanded the Virginia case to the 4th Circuit for consideration in light of its decision on the federal law.

Judge J. Harvie Wilkinson III had the most colorful language on the issue in a concurrence. “As abhorrent as I find the procedure at issue, I would not deny the ability of democratic majorities to sanction it in law. It is the democratic process that enhances the mutual respect through law that both sides to this charged debate must work to achieve,” he wrote.

“But to jump from legislative enactment to constitutional edict is a leap too far. To say that our founding document and fundamental values affirmatively sanction this procedure – based on an argument over the precise timing of a doctor’s intent to extinguish the existence of an emerging infant – is to invite coming generations to judge harshly the coldness of our ways.”

The votes in the case will underscore the arguments of those who stress the importance of the President in shaping the country’s judiciary.

All six members of the majority were appointed by Republicans, and all the minority judges were appointed by Democrats. President Barack Obama has an opportunity to appoint four more judges to the court, which has an authorized strength of 15.

Anticipating that the decision will be appealed to the U. S. Supreme Court yesterday, Attorney General Bill Mims issued a statement noting that the statute passed the General Assembly with bipartisan support, and that it had been defended by four different Attorneys General – Jerry Kilgore, Judith Williams Jadgmann, Bob McDonnell and himself.

Mims added, “I am confident that the Supreme Court ultimately will uphold the law.”

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