Richmond Medical Center v- Herring

Breaking: AG McDonnell To Appeal Partial Birth Abortion Ruling To Full Fourth Circuit Court Of Appeals

Below is the news release issued earlier this morning by Virginia Attorney General Bob McDonnell concerning his decision to appeal the 2-1 ruling earlier this month by a three-judge panel of the U.S. Fourth Circuit Court of Appeals to strike down Virginia's partial birth abortion ban. 

McDonnell Announces Virginia to Petition for Rehearing of Partial-Birth Abortion Case by Full Fourth U.S. Circuit Court of Appeals

-Move Follows Divided Panel Decision by Same Court Striking down Virginia's Partial-Birth Abortion Ban-

Richmond - Attorney General Bob McDonnell announced today that the Commonwealth of Virginia will ask the full Fourth U.S. Circuit Court of Appeals to review the decision of a divided panel of the court that struck down Virginia's ban on partial-birth abortion.

Speaking about the decision, Attorney General McDonnell noted, "It is my belief that Virginia's partial-birth abortion ban, passed overwhelmingly by the people's elected representatives in the General Assembly, is constitutional. Given the significance of the issues at stake, and the fact that the United States Supreme Court recently upheld a very similar federal ban on the procedure, the full court should review the ruling by the divided three-judge panel."

On May 20th a three-judge panel of the Court ruled 2-1 against the Commonwealth's partial-birth abortion ban, passed by the General Assembly in 2003. Following this decision the Commonwealth had two options in proceeding: petition for a rehearing by the full Fourth U.S. Circuit Court of Appeals, or appeal the decision to the Supreme Court of the United States.

The petition for rehearing by the full Fourth Circuit will be filed on Monday, June 2, 2008. The Court is expected to rule in approximately a month or two on whether the full court will review the case on the merits. If it does, it will schedule oral argument, most likely in the fall. The case is titled Richmond Medical Center v. Herring.

We applaud this very appropriate and reasoned appeal to this horrendous decision by the U.S. Fourth Circuit panel which trashes the rights of the most vulnerable and innocent among us; and which lacks deference to the overwhelming will of Virginians through its elected legislature (more than two-thirds of each General Assembly chamber), as well as to the Constitution of the United States as interpreted by the Supreme Court of the United States, which upheld a similar law.

Breaking: Fourth Circuit Court Strikes Down Virginia's Partial Birth Abortion Ban 2-1

A three-judge panel of the U.S. Fourth Circuit Court of Appeals struck down Virginia's partial birth ban by 2-1 decision in Richmond Medical Center v. Herring. (Read the opinion here.) This is horrible news. Hopefully, Attorney General Bob McDonnell will appeal to the full court or to the United States Supreme Court. After all, this case was heard because of a Supreme Court ruling that upheld another partial birth abortion ban. Read our summary of the hearing in early November here, as well as more impressions we had after the oral arguments here. (On those threads are links to legal opinions and audio of oral arguments in other key pro-life cases which played a role in this hearing.)

The decision was somewhat expected given the dispositions of Judges Diana Motz and M. Blane Michael, whose questions toward Virginia Solicitor General William Thro were clearly antagonistic. Judge Paul Neimeyer, on the other hand, seemed through his questioning, inclined toward upholding the law. Accordingly, the former two judges voted to overturn the law and the latter voted to sustain it.

More to come, possibly today, definitely tomorrow.

Four Thoughts, One Theme: Credibility

Expectations are a funny thing. Attending the hearing by a three-judge panel of the Fourth Circuit U.S. Court of Appeals on Virginia’s partial birth infanticide law, I expected certain things. I came away with four impressions: 1. Isn’t this the same place where at least hundreds lined the streets to protest Michael Vick for killing dogs?

Killing dogs is horrible, but where’s the public outcry against a practice whereby babies almost ready for delivery get their skulls crushed and remains sucked out of a woman’s womb?

2. It doesn’t matter what the issue is, or even the venue — not even one as august as so high a court: liberal arguments are just as incoherent and their tactics just the same as during the hysteria of a protest rally — change the subject, ignore the central point, redefine established facts; heck, just make up stuff.

The pro-abortion lawyer, at one point, was so off base, intentionally mixing issues, attempting to make non-germane points link to her shaky premise, that even Judge Motts, who voted previously to strike down this law, said, “Now, you’re confusing me!” At another point, Judge Paul Neimeyer asked her a question, and the lawyer refused to answer it, instead pointing to something on the Commonwealth’s brief on page eight. Judge Neimeyer had to ask her at least three times to answer the question, his irritation increasing each time. By contrast, even when Judge Diana Motz and Judge M. Blane Michael disagreed with Solicitor General William Thro, it was on interpretation, not fact.

3. Use whatever description you want — painfully awkward, bizarre, or "Twilight Zone” come to mind . . .

But it was disturbing to listen to the solicitor general have to make the case — in order for the law to be ruled constitutional — that the law did not cover, nor would an abortionist be prosecuted in situations where he allowed a pre-viability baby born by accident (when born accidentally) to be put aside to die due to inattention. Maybe the word is sick.

4. How come individuals, politicians and organizations who claim they want abortion to be “safe, legal and rare” seem to ignore the “rare”?

I have never heard any pro-abortion advocate speak in favor of counseling for giving birth and putting the child up for adoption or any other option that involves life. It’s all-abortion-all-the-time. Exactly what qualifies as “rare” anyway? More than a million abortions a year seems a bit high for “rare.” If they are really for “choice” why not provide true counseling and information on the possible options and services available for women who carry the baby to term? Doesn’t true choice mean there’s another course of action available? Why, then, is it always straight to the abortion factory? Apparently, credibility is only a concept when defending the “right” to kill babies ready to live outside the womb.

Rehearing Babies' Deaths

The Richmond-based U.S. Fourth Circuit Court of Appeals heard arguments Thursday regarding Virginia’s Partial Birth Infanticide statute. The Virginia law, originally ruled unconstitutional (on a 2-1 vote) by the same three-judge panel who presided yesterday, was revisited because of an April decision by the U.S. Supreme Court in Gonzalez v. Carhart. In that case, the justices ruled 5-4 in favor of upholding a certain partial birth abortion ban. (Hear those oral arguments.)

Lost in the argument regarding whether a facial or as-applied challenge was appropriate, was the gruesome details of the procedure that Virginia seeks to ban. Even more disturbing is what the Virginia law does not ban because of the woman’s constitutional right to kill her child. We learned in the argument that a Richmond abortionist believes that it is appropriate to begin to perform an abortion, accidentally deliver, and then set the child aside to die. In fact, based on the argument yesterday, this act is not just constitutionally protected, but Virginia’s partial birth infanticide ban would not make the act illegal. A child born at 19 or 20 weeks is callously laid to the side and left to die of natural causes. Virginia’s law would ban abortionists from accidentally delivering the child and then stabbing the child in the skull.

How can it be appropriate to deliver a child and let the living breathing child die a slow death because the doctor believes him to be pre-viability? With advances in technology, infants are becoming viable at earlier ages. Why shouldn’t doctors have an obligation to try and save a living, breathing child? At the end of life, we provide comfort to those who are terminally ill and do everything we can medically to ease the pain and suffering. Yet, a baby born at 19 weeks is thrown aside like garbage.   

Oh, and by the way, the General Assembly has twice rejected Family Foundation efforts to provide anesthesia to the babies who die by partial birth abortion as well as those who die of natural causes because the “procedure” didn’t go as planned.