A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., on Tuesday heard arguments on the constitutionality of Virginia's so-called "partial-birth" abortion ban, the Richmond Times-Dispatch reports (Campbell, Richmond Times-Dispatch, 10/27). The law defines "partial-birth infanticide" as intentional vaginal delivery of a living infant "for the purpose of performing an overt act that the person knows will kill the partially delivered living infant." The Center for Reproductive Rights in June 2003 challenged the law -- which establishes "partial-birth infanticide" as a felony -- on behalf of Richmond Medical Center for Women and abortion provider Dr. William Fitzhugh. The CRR suit claimed that the "vaguely defined" ban could subject to prosecution doctors who perform dilation and extraction procedures, which are a common type of second-trimester abortion. However, supporters of the law said it "specifically targeted" procedures that take place once the fetus has entered the birth canal. U.S. District Judge Richard Williams on July 1, 2003, ordered prosecutors in Richmond and Henrico counties not to enforce the ban until the constitutional challenge to the law had been resolved. Williams in February ruled that that state's ban on the procedure is unconstitutional because it lacks an exception for the health of a woman and "impermissibly infringes on the fundamental right to choose an abortion."

Other Abortion Bans
Virginia was the first state to enact legislation banning the procedure since the U.S. Supreme Court in 2000 ruled in Stenberg v. Carhart that a similar Nebraska law was unconstitutional because it did not provide an exception for the health of a woman (Kaiser Daily Reproductive Health Report, 2/4). In addition, three federal courts have declared unconstitutional the federal Partial-Birth Abortion Ban Act (S 3) in response to lawsuits filed by Planned Parenthood Federation of America, the American Civil Liberties Union on behalf of the National Abortion Federation and the Center for Reproductive Rights on behalf of four abortion providers. Each lawsuit alleged that the law is unconstitutional because of the absence of a health exception. The Department of Justice is appealing each decision (Kaiser Daily Reproductive Health Report, 9/29).

Arguments
Virginia Solicitor General William Thro in an appeal of Williams' decision on Tuesday argued that the state's ban is "constitutional on its face" and should get a trial on the merits (Richmond Times-Dispatch, 10/27). He said Williams lacked sufficient medical evidence to declare the ban unconstitutional and urged the appeals court to send the case back to Williams for a trial, the AP/WAVY.com reports. Thro argued that the Virginia law is narrower than the Nebraska and federal statutes and that a health exception is not necessary, according to the AP/WAVY.com. He added that there is no evidence of whether the procedure is "ever necessary" to protect the health of the woman (AP/WAVY.com, 10/26). CRR attorney Suzanne Novak argued that Supreme Court precedent shows that the ban is unconstitutional because it lacks an exception for the health of the woman and should be thrown out, according to the Times-Dispatch. "We hope the [federal appeals court] will read the record and see there is no need for it to go to trial," Novak said, adding, "The Supreme Court has been very clear" about requiring a health exception when regulating abortion (Richmond Times-Dispatch, 10/27). The court likely will not rule for several weeks or months, according to the AP/WAVY.com (AP/WAVY.com, 10/26).