D & X / PBA PROCEDURES

VIRGINIA STATE LAWS

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Disclaimer:

The following is information only, not legal advice. Do not make any decisions on the basis of this essay. If you have a personal legal situation, you may want to consult a lawyer who specializes in this area. This text is believed to be accurate when it was last edited.

1998 law:

In 1988, Virginia's first law that severely restricted D & X abortions was signed into law by Governor James Gilmore on 1998-APR-13. It would have punished any physician who perform the procedure with a fine of $2,500 and/or a jail sentence of up to one year. An exception was allowed only to save the woman's life. A lawsuit filed by four clinics and two physicians challenged the law as being unconstitutionally vague; it could be applied as early as 10 weeks into gestation. On 1998-JUN-25, U.S. District Judge Robert Payne issued an injunction which prevented the law from taking effect on JUL-1, pending resolution of the lawsuit. He stated that the language of the law was "imprecise." This probably came as no surprise to the legislators of Virginia, because most of the are probably lawyers who are aware of the U.S. Supreme Court ruling Roe v. Wade in 1973 which grants women unrestricted access to first trimester abortions.

In mid-2000, the U.S. Supreme Court, declared that the Nebraska anti-D&X law was unconstitutional, because it did not provide an exception to protect the health of the pregnant woman. This decision had the effect of striking down all of the D&X abortion laws that had been previously passed by 31 states, including the 1998 Virginia law.

2002 law:

The Virginia legislature passed a new bill on 2002-MAR-7 which would criminalize what it calls "medically induced infanticide." It passed the House by a vote of 75 to 25, and the Senate by 26 to 12. The bill forbids anyone who "deliberately and intentionally performs either the delivery of a living fetus or a substantial portion thereof...for the purpose of performing a subprocedure intended to kill the fetus." The bill contains the usual exception clause which would allow a D&X abortion if the woman's life is in danger. Unlike an earlier Virginian bill passed in 1998, this one has a novel feature: it also allows D&X abortions if needed to prevent "substantial or irreversible impairment of a major bodily function." This is precisely the type of exception clause that Democrats in the Congress had tried unsuccessfully to add to the various federal D&X bills over many years.

Governor Mark R. Warner (D) vetoed the bill on 2002-APR-4. He had previously promised to sign the bill into law if he felt that it withstand a constitutional challenge. But "Critics said the measure...failed several constitutional standards." ₁ Warner said that the bill did not contain a broad enough health exception, and that it should only apply after viability. As written, it would have applied to abortions performed early in gestation, and thus violate the U.S. Supreme Court's Roe v. Wade ruling. ₂

If it had been signed into law, it will be up to the courts to determine whether the "major bodily function" clause is sufficiently broad and specific to make the law constitutional.  Bennet Greenberg, executive director of Planned Parenthood Advocates of Virginia said: "I'm not aware of a need for this bill in the first place, since this procedure is very, very rare, and I'm not aware it's ever been used." ₇ "According to Department of Health statistics, 25,913 abortions were performed in Virginia in 1998. Ninety-five percent, or 24,543 were performed during the first 13 weeks of pregnancy. Only six [abortions  0.023%] were reported for weeks 28 and later." ₁

2003 law:

The Virginia General Assembly passed a third anti-D & X bill which severely restricts what it called "partial birth infanticide." It forbids the killing of a fetus during an abortion after its head has emerged from the body. If the fetus emerges feet first, the fetus cannot be killed during an abortion if it emerges as far as its navel. However, it allows a D & X abortion if needed "to prevent the death of the mother, so long as the physician takes every medically reasonable step....to preserve the life and health of the infant." The bill became law.

Dr. William G. Fitzhugh, and the Richmond Medical Center for Women which he founded, launched a lawsuit which temporarily blocked the law from being applied. Lawyer Suzanne Novak, of the Center for Reproductive Rights argued before the U.S. District Court that the legislation was a "dangerous law" because it did not include an health exception. She said that it prevented doctors from performing "the safest and most common second-trimester abortion procedures." Judge Richard L. Williams found that the law was unconstitutional for several reasons, including the lack of an exception for the health of the woman.

The state appealed this ruling to the 4th Circuit Court of Appeals. On 2005-JUN-03, the appeals court re-affirmed the lower court's decision that the law is unconstitutional. They based this ruling on the sole ground that it does not include an exception to protect the health of the mother. The vote was 2 to 1. Judge M. Blane Michael wrote a 18 page majority opinion on behalf of himself and Judge Diana Gribbon Motz. He wrote that the U.S. Supreme Court: "...has made clear that a state may promote but not endanger a woman's health when it regulates the methods of abortion." He wrote that the Nebraska case: "established the health exception requirement as a per se constitutional rule. . . . Thus, the lack of a health exception alone provides a sufficient basis for invalidating restrictions on a woman's right to have an abortion."

Judge Paul V. Nikemeyer issued a 28 page dissenting opinion. He criticized the majority ruling and expressed his personal objection to the D & X procedure. He wrote: "The majority's opinion is a bold, new law that, in essence, constitutionalizes infanticide of a most gruesome nature. I profoundly dissent from today's decision." He wrote that the Virginia law is substantially different from the Nebraska law which the Supreme Court found to be unconstitutional because it lacked an exception to preserve the health of the woman. He concluded that "Without recognizing the differences between the Nebraska statute and the Virginia statute and without taking into account the facts before this court," the majority incorrectly determined that the U.S. Supreme Court ruling created a "constitutional rule that requires any ban on partial-birth abortion to contain language protecting the health of the mother." ₃

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Tyler Whitley, "Abortion measure reaches governor ; Senate approves bill on 26-12 vote," Times-Dispatch, 2002-MAR-8, at: http://www.timesdispatch.com/.
2. "Gov. Warner Vetoes Ban on Partial-Birth Abortions: Legislature Override Attempt Fails," VSHL Lifesaver, 2002-JUN, at: http://www.vshl.org/.
3. Tom Campbell, "Abortion law struck down. Court says Virginia's partial-birth ban is unconstitutional because it doesn't protect woman's health," Richmond Times-Dispatch, 2005-JUN-04, at: http://www.timesdispatch.com/