The Fourth Circuit Gets it Right . . . Again

by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

On Tuesday, the Fourth Circuit Court of Appeals struck down Virginia’s ban on a medically-approved abortion procedure . . . again. The first time the law was invalidated was in 2005. Why the repeat? Well, 2005 was a much different time. Justice O’Connor had not yet retired from the Supreme Court and Stenberg v. Carhart was still good law. Stenberg v. Carhart was the 2000 decision in which the Court said states could not criminalize a medically-approved abortion procedure without an exception for women’s health. So when the Fourth Circuit looked at the Virginia ban in 2005, it followed Stenberg and declared the law unconstitutional.

Fast forward to 2008. There are two new justices on the Court – Justice Alito and Chief Justice Roberts. And Stenberg is no longer good law. Instead we have Gonzales v. Carhart, a decision in which the Court for the first time allowed a ban on a specific abortion procedure that did not contain an exception for the woman’s health. So after Carhart II, the Supreme Court ordered a new look at the Virginia ban.

Fortunately, the Fourth Circuit struck down Virginia’s extreme ban this time too. The court found that the Virginia ban lacks two key aspects of the federal law upheld in Carhart II: the intent requirement (mens rea, for your lawyers and law students) and the requirement of an additional act distinct from delivery. Without those elements, a doctor could accidentally perform the banned procedure and face prosecution. The only way for doctors to avoid the risk of prison? Don’t perform any second-trimester procedures at all. In other words, the law effectively banned all second trimester abortions in Virginia. The Fourth Circuit correctly recognized that would impose an “undue burden” on women’s right to abortion.

Another repeat from the 2005 case was the panel deciding it. The decision was split 2-1, with two Clinton-appointed judges in the majority: Judge Diana Gribbon Motz and Judge M. Blane Michael. In the dissent was a Bush I-appointed judge, Judge Paul V. Niemeyer, who accused the majority of a “glaring misreading of both the Virginia Act and the Supreme Court’s decision in Gonzales v. Carhart.” This prompts me to say once again that it matters who our federal judges are.