In an important 6-4 decision today, the Fourth Circuit announced that it will rehear en banc a case involving the constitutionality of Virginia’s partial birth abortion ban. The original panel of three appellate judges had originally declared the statute—with provisions nearly identical to that of the Supreme Court-affirmed federal ban—unconstitutional.
Despite the statute’s clear provision excluding other forms of abortion from its prohibition, the Fourth Circuit panel concluded that the statute prohibits all D&E abortions, making its reach unconstitutional according to Gonzales v. Carhart. The court’s convoluted reasoning was as follows: there is no “intent” provision at the beginning of the procedure. The requirement that an abortionist intend to perform a partial birth abortion does not attach until the baby has already been extracted intact. At that point, any action taken to kill the baby is an overt action, making the abortion an intentional partial birth abortion. The court stated that this meant that if an abortionist began the procedure intending to perform a D&E, but “accidentally” drew the baby out intact with the head lodging in the mother’s cervix, any act from that point on is intentional and punishable.
However, and as the state argued in its briefs, the “intent” requirement clearly attaches from the very beginning of the procedure.
This case has a number of important implications. First, the Fourth Circuit’s initial decision is clearly testing the United States Supreme Court’s (USSC) decision in Gonzales v. Carhart. In essence, the Fourth Circuit panel is manifestly deviating from the USSC’s instruction in that case.
Second, the outcome of the case could have significant effects in other states. Currently, there are at least four state partial birth abortion bans in place that either 1) have already been litigated and found constitutional, or 2) mirror the constitutional federal law.
However, there are at least eight state laws that have not been challenged. The Fourth Circuit’s current line of logic could be extended to enjoin some of these state laws. However, if on rehearing the Fourth Circuit reverses course and upholds Virginia’s law, these laws will be bolstered by both Gonzales v. Carhart and the Fourth Circuit decision.
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In the future, please include the citation and a link to the ruling. Thanks.