Federal Appeals Court Upholds Ban on Partial-Birth Abortion

Theres been a very significant decision issued by the U.S. Court of Appeals for the Fourth Circuit reversing an earlier decision and upholding the Virginia state ban on partial-birth abortion approved in 2003.  The 6-5 decision by the full Court of Appeals reversed its prior panel decision that held Virginias Partial Birth Infanticide Act was facially unconstitutional.  Under the Supreme Courts stringent standard for challenging a law on its face, the Fourth Circuit correctly held that the Virginia law is constitutionally valid on its face.

 

The ACLJ filed an amicus brief in this case in September 2008, supporting the Commonwealth of Virginia.  We argued that a facial challenge to the Virginia ban was inappropriate. We contended that special protection afforded to speech under the First Amendment ought not to be extended in the abortion context.  As the Supreme Court explained in Gonzales v. Carhart, [t]he latitude given facial challenges in the First Amendment context is inapplicable here. Gonzales v. Carhart, 550 U.S. 124, 167 (2007). 

 

Virginia state officials were pleased with the decision to uphold the law, which passed both houses of the Virginia General Assembly with bipartisan support.  While we anticipate that the U.S. Supreme Court may be asked to review the decision, said Bill Mimms, Virginia Attorney General, I am confident that the Supreme Court ultimately will uphold the law.

 

This is an important decision protecting life.  You can learn more about the case and the Fourth Circuit decision in our analysis of the case posted here. 

  

In a concurring opinion on behalf of the majority opinion upholding the ban, Circuit Judge Wilkinson embraced a stance against court interference with the will of the people concerning the regulation of partial-birth abortion. 

 

Judge Wilkinson also explained why there should not be constitutional protection for the brutal business of partial-birth abortion:

 

All civilizations will be measured in the fullness of time. Perhaps fine art, great invention, sustained prosperity, or enhanced longevity mark the quality of civilized life. Perhaps, I say, because there must be something more. How a society treats its most vulnerable members may do more than grandiosity to shape its lasting worth. A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection . . .

 

The fact is that wecivilized peopleare retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull. Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.

 

This is an important victory to protect human life.  Were pleased that the full appeals court understood the importance of this measure and ultimately upheld the constitutionality of this Virginia law.  We will continue to work to protect the most innocent the unborn.