Prolife Educational Articles

Partial-Birth Abortion Ban Takes Effect Appeals Judge Overrules Lower Court Injunction

At fourteen minutes before midnight on June 30, Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals stayed an injunction of Virginia's law to ban partial-birth abortions issued the previous week by U.S. District Judge Robert E. Payne. This allowed the law to go into effect on July 1 as specified in the legislation.

This is the second year in a row that Judge Luttig has overruled a lower court injunction against a pro-life law; last year, his June 30 ruling permitted Virginia's parental notification law to take effect, although it is still under challenge.

Judge Payne issued his injunction on June 25 in response to a suit challenging the newly passed law filed by two doctors and four abortion clinics in Virginia. His ruling was immediately appealed by the office of Virginia Attorney General Mark Earley, leading to Judge Luttig's eleventh hour ruling. Judge Luttig's ruling has been appealed by the Center for Reproductive Law and Policy, which is representing the doctors and clinics, asking for a three-judge appeals court panel to reinstate Judge Payne's order.

Judge Luttig noted in his 18-page opinion that the "undisputed purpose" of the ban is to bar any procedure in which a physician delivers a fetus, ruptures its skull and then dislodges it from a woman's body -- a method of abortion that Virginia clinics challenging the ban say they do not use.

Virginia Attorney General Mark L. Earley called the appeal "merely another legal maneuver intended" to thwart the public will as carried out by lawmakers. "Judge Luttig's opinion is well-reasoned and legally sound," Earley said in a written statement. "We will continue to stand against this disturbing form of infanticide known as partial birth abortion, and fight to uphold the dignity and worth of human life."

Meanwhile, Judge Payne has scheduled trial dates of August 18-20 to hear the case against the law. The Attorney General's office asked Judge Payne to delay the trial until after the appeals court panel ruled, but Judge Payne refused to do so.

The plaintiffs contend that the law is vague and uses imprecise language, that the law is unconstitutional and would make "health-care workers" criminally liable for performing common abortion procedures.

The law defines a partial-birth abortion as one in which the abortionist "deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery." The American Medical Association said that this language, taken from the federal bill banning partial-birth abortions, "would clearly define the prohibited procedure so that it is clear on the face of the legislation what act is to be banned." The AMA has also said that this procedure is "not good medicine."

"Regrettably the Supreme Court forbids states from banning abortion procedures, no matter how inhumane, as long as the child is killed in the uterus," said VSHL President Louise D. Hartz. "In a partial-birth abortion, however, the child is almost completely delivered before that child is killed."

Roe v. Wade did not address the constitutionality of killing a child in the process of being born. In fact, that decision took note of, and left intact, a Texas law which said it was a felony to kill a baby in the process of being delivered but before actual birth. This Texas law has not been challenged.

Published in VSHL Lifesaver - August 1998