By Rita Dunaway*
On May 20, 2008, in Richmond Medical Center for Women v. Herring, the United States Court of Appeals for the Fourth Circuit ruled that a Virginia law banning "partial birth infanticide" is unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion. 1 The decision is particularly noteworthy because the statute rejected by the Fourth Circuit is very similar to the federal partial-birth abortion ban upheld by the Supreme Court last year in Gonzales v. Carhart (hereinafter referred to as Carhart II).2
The Virginia statute which the Fourth Circuit struck as unconstitutional provided that "[a]ny person who knowingly performs partial birth infanticide ... is guilty of a Class 4 felony." 3 The Act defines "partial birth infanticide" as follows:
Any deliberate act that (i) is intended to kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother, and that (ii) does kill such infant, regardless of whether death occurs before or after extraction or expulsion from its mother has been completed. 4
The law applies only where the infant, after expulsion or extraction, breathes or shows other evidence of life, such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles. 5 The human infant is considered to have been born alive, and is thus protected by the statute, once the infant's entire head (in headfirst presentation) or any part of the infant's trunk past the navel (in breech presentation) is outside the body of the mother. 6
Both the Virginia statute and the federal law were drafted to ban a late-term abortion procedure referred to as "intact dilation and extraction" or "intact D & E." This type of abortion differs from the dilation and evacuation procedure, or "standard D & E," in which the doctor dilates the woman's cervix and uses suction and forceps to remove the fetus. As the doctor uses forceps to pull the fetus out of the cervix in a standard D & E, friction usually causes parts of the fetus to break off or disarticulate. 7 As a result, the fetus is removed in pieces. 8 Throughout the process, the fetus may show signs of life, such as a heartbeat, until the disarticulation causes the fetus to die. 9 The standard D & E procedure is the most commonly used method for performing pre-viability second trimester abortions. 10 The banned procedure, the intact D & E, differs from the standard D & E in that the doctor removes the fetus intact or largely intact. 11
Where the fetus presents head-first, a doctor performing an intact D & E first collapses the fetus' head to allow it to pass through the cervical opening and then delivers the fetus intact. 12 In a breech presentation, the doctor delivers the fetus' body through the cervical opening up to the point that the doctor has access to the fetus' head. 13 At this point, the doctor squeezes the head with forceps or punctures it with scissors, and then suctions out the head's contents in order to collapse the head and deliver the fetus intact. 14
The Fourth Circuit's entire review of the Virginia statute was premised upon a principle adhered to by the Supreme Court in Carhart II: that any law that effectively prohibits standard D & E abortions imposes an undue burden upon a woman's right to choose to have an abortion, and thus violates the Constitution. 15
The primary challenge to the Virginia law was the assertion that the law imposed an undue burden on a woman's right to choose an abortion because, while the statute ostensibly targets the less common intact D & E, it exposes doctors to criminal liability when they perform standard D & E abortions because these procedures pose "the risk of unintentional intact delivery of the fetus to one of the anatomical landmarks specified in the Act." 16 Ultimately, two of the three judges who comprised the Fourth Circuit panel reviewing the case agreed that the Virginia statute effectively prohibited--through fear of criminal liability--doctors from performing the standard D & E procedure. 17 Thus, the panel reasoned, the law imposed an undue burden on a woman's right to obtain an abortion. 18
According to the Fourth Circuit panel majority, the Virginia statute's ban on "partial birth infanticide" differed from the federal ban on "partial-birth abortion" in constitutionally meaningful regards. Specifically, while the federal law imposes criminal liability only where the doctor intends at the outset to perform an intact D & E, the Virginia law's only intent requirement relates to the overt act of killing the human infant. 19
In order to violate the federal partial-birth abortion ban, a doctor must (1) "deliberately and intentionally" deliver the fetus to a specific anatomical landmark (2) "for the purpose of performing an overt act that the [doctor] knows will kill [it]." 20 The Supreme Court thus found, in Carhart II, that the "intent requirements ... preclude liability from attaching to an accidental intact D & E." 21 The Virginia partial birth infanticide ban imposes liability upon a doctor who "knowingly performs partial birth infanticide..." 22 However, the panel found that because "partial birth infanticide" is defined as performing "any deliberate act that ... is intended to kill a human infant who has been born alive," the knowledge requirement only attaches to the commission of the deliberate act that kills the infant." 23 In other words, because a doctor intending to perform a standard D & E abortion might accidentally deliver the fetus to an anatomical landmark before performing the deliberate act that causes fetal demise, he or she would be subject to liability under the Virginia law because he or she would possess the requisite intent to kill the fetus once the fetus is substantially outside the mother.
Interestingly, Judge Niemeyer, who dissented from the panel decision, pointed out that any doctor who sets out to perform a standard D & E abortion but who accidentally delivers the human infant intact up to one of the anatomical landmarks has the option of simply forgoing the act of killing the infant. 24 Judge Niemeyer explained:
[E]ven before the infant is delivered alive--when it is almost fully brought in to the world--the Supreme Court has found the State's interests in preserving the sanctity of life to be greater than in the case where the fetus is killed before it has substantially entered the world intact. Whether these distinctions make sense, or indeed whether both abortion methods are equally brutal, is not the question to contemplate in applying controlling law, as a standard D & E abortion has been judged permissible. But the Supreme Court has found that a State's interest in the life of a human fetus is increased when that fetus is substantially expelled from the woman carrying it.
As a result, requiring a doctor--in situations that occur very rarely, if ever--to attempt to complete delivery and, if he so chooses, to allow the infant to expire on its own, is not an undue burden on a woman's right to choose to have an abortion, nor does it subject any doctor to the possibility of unintentional and unchecked criminal liability. Perhaps a doctor cannot fully predict when an infant will emerge to an anatomical landmark intact, but the doctor can always control his actions in those exceedingly rare situations when this occurs and thus avoid criminal penalties in every case. 25
The panel did not discuss this line of reasoning as a potential saving construction for the Virginia statute. Rather, the panel stated at one point in its opinion, "[A] doctor faced with an accidental intact D & E must take steps to complete the abortion." 26
The Fourth Circuit panel majority also found that the Virginia statute was fatally flawed in that, unlike the Federal Act, it did not require that the deliberate act causing fetal demise after delivery to an anatomical landmark be distinct from completing delivery. 27 When a doctor who had originally intended to perform a standard D & E abortion accidentally delivers a fetus intact, the doctor generally causes fetal demise by either continuing to pull or apply traction, which causes disarticulation, or by compressing the skull. 28 In either case, the Virginia law would impose criminal liability. This, the Fourth Circuit found, was an unconstitutional result, since it imposed upon doctors a fear of criminal prosecution based upon the risk that a standard D & E might not result in the death of the human infant prior to its delivery to one of the anatomical landmarks, thus necessitating, in the panel majority's view, a partial birth infanticide. 29
The immediate result of the Fourth Circuit's ruling is a permanent injunction on enforcement of Virginia's partial birth infanticide ban, but the statute's objective may yet be easily achieved if the Virginia legislature can muster the requisite political will. Because the Supreme Court has upheld the language of the federal Partial-Birth Abortion Ban Act of 2003, which targets the same procedure as the Virginia statute, Virginia need only employ the exact language of the federal law in order to effect the ban. While this type of ban precludes doctors from choosing one particularly brutal form of abortion, it is important to note that, in the end, it is only considered constitutional under current Supreme Court jurisprudence because it leaves available the more common and equally effective means of aborting the very same human infants that the banned procedure would have aborted.
*Rita Dunaway is Education Counsel to The Rutherford Institute.
1 2008 WL 2102477 (4th Cir. 2008).
2 127 S.Ct. 1610 (2007).
3 Va. Code Ann. Â§ 18.2-71.1.
5 Id. Â§ 18.2-71.1B.
6 Id. Â§ 18.2-71.D.
7 Herring, at *3, citing Carhart II at 1621.
10 Id. at *5 (quoting Stenberg v. Carhart, 530 U.S. 914, 945-46(2000)).
11 Id. at *3.
12 Id. at *17 (Niemeyer, J., dissenting).
13 Id. (Niemeyer, J., dissenting).
14 Id. (Niemeyer, J., dissenting).
15 Id. at *5 (quoting Stenberg, 530 U.S. at 945-46).
17 Id. at *2.
19 Id. at *6.
20 Carhart II, 127 S. Ct. at 1628 (quoting 18 U.S.C. Â§ 1531(b)(1)(A)).
21 Herring, at *5 (quoting Carhart II, at 1631).
22 Va. Code Ann. Â§ 18.2-71.1.
23 Herring, at *7 (quoting Va. Code Ann. Â§ 18.2-71.1.B).
24 Id. at * 24 (Niemeyer, J., dissenting).
25 Id. (Niemeyer, J., dissenting).
26 Id. at *7.