Fourth Circuit Holds Strong on Choice

On Tuesday, the U.S. Court of Appeals for the Fourth Circuit overturned – for the second time – a Virginia law banning so-called "partial birth abortion." The case, Richmond Medical Center v. Herring, involved a criminal ban on the relatively uncommon procedure known by doctors as “intact dilation and extraction.”

The law, which deceptively referred to the procedure as “partial birth infanticide,” was passed by the state legislature in 2003 and overturned for the first time in 2005. But after the Supreme Court upheld a similar federal statute (Gonzales v. Carhart) last year, the Richmond based court of appeals was ordered to reconsider its previous decision.

The three judge panel that considered the case determined in its 2-1 decision that the Virginia ban – as opposed to the federal ban – was unconstitutional because it imposed criminal liability on doctors who performed the procedure without intending to do so. The decision stated that criminalizing the procedure without regard for a doctor’s intent was unduly burdensome and thus unconstitutionally restricted a woman’s right to choose.

While pro-choice groups across the nation were pleased with the decision, a spokesman for Virginia’s Attorney General, Bob McDonnell, said that he is “extremely disappointed with the divided decision” and that the office is “reviewing the panel opinion…and considering all possible courses of action,” including a request for an en banc hearing, the result of which would be uncertain considering that the full circuit tends to be more conservative than the panel of judges that heard this case.

The tremendous importance of the Fourth Circuit , which hears cases from Maryland, North Carolina, South Carolina, Virginia, and West Virginia, has made it a central focus of the Bush administration’s court-packing crusade. Just yesterday, the Senate voted to confirm G. Steven Agee to a seat on the court and there are four other nominees still pending before the Judiciary Committee. These nominations could tilt the balance of this crucial court for decades to come.

To learn more about the state of the Fourth Circuit, check out our new fact sheet here.