A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., on Thursday heard a request to review the panel's decision to overturn a 2003 Virginia law that bans so-called "partial-birth" abortion, the Washington Post reports (Barnes, Washington Post, 11/2).

The Virginia law defined "partial-birth infanticide" as intentional vaginal delivery of an infant "for the purpose of performing an overt act that the person knows will kill the partially delivered, living infant" and established it as a felony. The Center for Reproductive Rights challenged the law on behalf of the Richmond Medical Center for Women and abortion provider William Fitzhugh. A three-judge panel of the 4th Circuit Court in June 2005 voted 2-1 to overturn the law because it lacked an exception to protect the health of pregnant women. The panel cited the 2000 U.S. Supreme Court ruling in Stenberg v. Carhart, which struck down a similar Nebraska law for lacking a health exception. However, the U.S. Supreme Court in April ordered the 4th Circuit Court to review its decision to overturn the law in light of the Supreme Court's 5-4 ruling in the Gonzalez v. Carhart case, which upheld a federal law (S 3) banning partial-birth abortion (Kaiser Daily Women's Health Policy Report, 4/25).

Arguments
Stephanie Toti, an attorney with CRR, told the panel that physicians performing a routine type of abortion called dilation and extraction would be at risk of accidentally breaking the Virginia law. "The only way to avoid the risk is to not do the [procedure] altogether," Toti said. Judge Paul Niemeyer, who dissented in the 4th Circuit Court's 2005 ruling, challenged Toti's claim and said only deliberate violations are covered by the law (O'Dell, AP/Hampton Roads Daily Press, 11/1).

Virginia Solicitor General William Thro told the panel that the Supreme Court's decision in Gonzalez v. Carhart "removes any doubt that the Virginia act is constitutional." Judge Blane Michael, who voted with the majority in the 2005 case, told Thro that the Supreme Court's decision "doesn't really quite get you home" (Washington Post, 11/2). Thro also said that it was hard to see prosecutions for accidental violations, which he argued would be so rare that invalidating the entire law would be overreaching. Michael suggested that any chance of violating the law might deter abortion providers, adding, "Whether it's three times out of 100 or whatever it is, that's a big risk" (AP/Hampton Roads Daily Press, 11/1).

The panel might rule in a few weeks or months, the Richmond Times-Dispatch reports (Campbell, Richmond Times-Dispatch, 11/2). According to the Post, the panel's review is a "key test" on how the Gonzales v. Carhart decision will affect state abortion restrictions (Washington Post, 11/2).