Va. law banning late-term abortion is barred by court

Attorney general vows to pass measure against procedure next year

`Other courts ... will follow suit'

July 29, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON - In a significant turnabout, spurred by a recent Supreme Court ruling, a federal appeals court barred Virginia yesterday from enforcing its ban on "partial-birth" abortions.

The decision by the 4th U.S. Circuit Court of Appeals in Richmond - the appeals court that decides federal cases arising in Maryland and other mid-Atlantic states - lifted an order it issued 10 months ago putting the Virginia law into effect even after a District Court had found it unconstitutional.

The state's law thus will be on hold until the appeals court reviews the judge's decision that struck it down.

Virginia's attorney general, Mark L. Earley, said the state "now must accept the judgment of the courts." Given the new order, he added, "it is obvious that any hope of banning partial-birth abortions in Virginia will require new legislation." He vowed to work with the legislature to pass a new measure next year "to put an end to this disturbing form of infanticide once and for all."

Abortion-rights supporters praised the court's action, and said it spelled defeat for similar laws in other states.

The Virginia law, similar to laws in 30 other states, seeks to ban abortion that includes a partial removal of the fetus from the womb as part of the process. Because part of the fetus is outside the uterus, perhaps before the fetus has died, supporters of such bans say the procedure involves a "partially born" child and they liken the procedure to infanticide.

On June 28, the Supreme Court struck down, by a 5-4 vote, a similar law in Nebraska, saying the law was so broadly worded it could strike down most abortion procedures, including those that are protected by the Constitution.

That ruling technically was confined to the Nebraska law, thus leaving it to lower courts to take the next steps and rule on the fate of the other 30 states' laws. Maryland has no such law.

The Richmond court was the first appeals court to apply the Supreme Court's ruling directly to nullify another of those laws.

Earlier this week, the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, struck down New Jersey's version of a late-term abortion ban, but it did not rely on the Supreme Court decision. It said it had decided against the law before that, and simply held its opinion for release until now.

At the same time, however, the two rulings in sequel cases supported the clear impression that few if any of the existing late-term abortion bans will survive further court review.

That impression was strongly reinforced by a striking development in both the court in Richmond and the one in Philadelphia. In each case, a judge with a strong conservative record said that the Supreme Court's latest ruling should lead lower courts to strike down - without additional review - similar state laws elsewhere.

In the Virginia case, Circuit Judge Michael J. Luttig - who had voted twice before to let Virginia enforce its law - said all of the state of Virginia's arguments for upholding its law have been "foreclosed" by the justices' decision.

In fact, Luttig said, the highest court's decision has so undercut the Virginia law "as to render further argument in this court unnecessary."

The two other members of the Richmond court did not join Luttig in that aspect of the ruling. They simply said that challengers to the state law had offered sufficient reason to bar enforcement of the law under a decision issued a year ago by U.S. District Judge Robert E. Payne of Richmond. Payne said the law was unconstitutional under earlier Supreme Court rulings.

Thus, while the appeals court studies Payne's decision, the state law cannot be enforced.

In the New Jersey case, Circuit Judge Samuel J. Alioto Jr. said the appeals court should have struck down that state's law based directly on the Supreme Court ruling because of the close similarity between the New Jersey and Nebraska laws.

The decision by the other two members relying on earlier abortion precedents, Alioto said, "is now obsolete."

Remarks by judges Luttig and Alioto prompted an abortion-rights lawyer, Simon Heller, to argue that "other courts of appeals will follow suit" and nullify similar laws elsewhere.

Heller is litigation director for the Center of Reproductive Law and Policy, an abortion-rights advocacy group that is involved in most of the test cases against late-term abortion laws.

He said that in both actions this week, neither appeals court was willing to send the cases back to the states to see if state officials or courts would interpret the laws narrowly enough to save them constitutionally. That kind of referral is a tactic that is being tried by several states in attempts to salvage their laws in the wake of the Supreme Court decision.

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