Court strikes down Va. late-term abortion ban

updated 6:56 p.m. ET May 20, 2008

RICHMOND, Va. - A Virginia law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban was upheld by the U.S. Supreme Court, a federal appeals court ruled Tuesday.

The 2-1 decision by a panel of the 4th U.S. Circuit Court of Appeals affirms the same court’s 2005 ruling striking down the law. The Supreme Court had ordered the appeals court to take another look at Virginia’s statute after the ruling on the federal ban.

The appeals court cited a key difference between the federal and state bans on the procedure that abortion opponents call “partial-birth abortion.” The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure. The Virginia statute provides no such protection.

The state has two weeks to ask the full federal appeals court to review the ruling, or 90 days to appeal to the Supreme Court. The attorney general’s office “is reviewing all possible courses of action,” spokesman J. Tucker Martin said.

The state law is unconstitutional “because it imposes an undue burden on a woman’s right to obtain an abortion,” Judge M. Blane Michael wrote in the majority opinion, joined by Judge Diana Gribbon-Motz.

The ruling means Virginia women will continue to have access to safe abortions through the second trimester of pregnancy, said Stephanie Toti, the Center for Reproductive Rights lawyer who represented abortion providers in the case.

“The court recognized Virginia’s law is extreme — that it effectively banned the most common method of second-trimester abortion, and that is unconstitutional,” Toti said.

The Family Foundation of Virginia said it hoped a higher court would reverse the ruling.

“It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature, and simple justice for nearly born children,” said Victoria Cobb, the organization’s president.

The majority agreed with Toti’s argument that doctors performing a standard type of abortion would be at risk of accidentally violating Virginia’s law. Michael and Motz were both appointed to the court by President Clinton.

Judge Paul V. Niemeyer, an appointee of President George H.W. Bush who dissented in the 2005 ruling, remained the lone dissenter. He wrote that the Virginia’s law “is virtually identical to the federal statute upheld as constitutional” in the Supreme Court’s 2007 Gonzales v. Carhart decision.

According to the Center for Reproductive Rights, 16 of the 27 state bans on the late-term abortion procedure have been permanently struck down by the courts. Eleven bans remain in effect.

Last June, the 6th U.S. Circuit Court of Appeals declared Michigan’s law unconstitutional because it could also prohibit other abortion procedures, and the Supreme Court in January refused to review the decision.

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