The U.S. Court of Appeals for the 4th Circuit has never allowed Virginia's Partial Birth Infanticide Act of 2003 to take effect, but the Supreme Court ordered it last year to reexamine the law in light of the high court's decision upholding the federal ban.
Since that April 2007 ruling, federal appeals courts have struck down abortion laws in Michigan and Virginia, saying they go beyond what the Supreme Court approved.
In Richmond, the three-judge panel that overturned the law in 2005 repeated its 2 to 1 decision yesterday, saying that the only way doctors could be certain they would not be prosecuted under the law would be to stop performing abortions.
"The Virginia Act imposes an undue burden upon a woman's right to choose a previability second trimester abortion," Judge M. Blane Michael wrote. He was joined by Judge Diana Gribbon Motz.
The Virginia law bans the medical procedure "intact dilation and extraction" (D&E), which along with a standard dilation and extraction is used to terminate pregnancies after about 12 weeks. Up to 90 percent of abortions occur before then.
In a standard dilation and extraction, which remains legal, the fetus is dismembered in the womb; in an intact procedure, the fetus is partially delivered and the skull is crushed to make removal easier.
Abortion rights supporters and many doctors said the latter procedure is sometimes needed to preserve a woman's health, while abortion opponents -- and Congress, in passing the ban -- said it is not.
What concerned the judges about the Virginia law is something the state acknowledged was possible: An "accidental" intact dilation and extraction can occur when a doctor is performing a standard procedure.
Michael wrote that although the federal law protects a doctor who did not set out to perform an intact dilation and extraction, the Virginia statute does not.
"A doctor attempting in good faith to comply with the Virginia Act will accidentally violate the Act in a small fraction of cases," Michael wrote. "But the doctor never knows prior to embarking on any standard D&E procedure whether a violation will occur. Thus, every time a doctor sets out to perform a standard D&E, he faces the unavoidable risk of criminal prosecution, conviction, and imprisonment."
The only way to avoid the risk, Michael continued, is to avoid performing second-trimester abortions, and that would impose an "undue burden" on a woman's right to terminate her pregnancy.
The burden that would have been imposed by the Virginia law is even more drastic, as it creates a situation where a doctor could not perform an abortion procedure that is legal by federal law without the risk of breaking state law in the event of an unavoidable complication. When doctors are too afraid to perform a legal medical procedure because there's a small chance that a complication could land them in jail, it seems that there absolutely is an undue burden, and women's lives are put at risk.
Anti-choice supporters of the Virginia law claim that it is "nearly identical" to the Federal Abortion Ban, and therefore the Court of Appeals has overstepped its bounds.
Niemeyer accused the majority of "ignoring explicit language and undertaking its course to find ambiguity in the Virginia Act so as to be able to strike it down."
He said that the potential problem would occur in a tiny percentage of cases and that doctors who did not intend to violate the law would be protected under a "rule of lenity."
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Niemeyer said the decision represented "nothing less than a strong judicial will to overturn what the Virginia legislature has enacted for the benefit of Virginia's citizens and what, in materially undistinguishable terms, the Supreme Court has upheld as constitutional."