Va. “partial birth infanticide” law still unconstitutional

Last year the U.S. Supreme Court upheld a federal law proscribing “partial birth abortion,” holding that the law was neither facially void for vagueness nor an “undue burden” on the right of choice recognized in Roe v. Wade and its progeny. Gonzales v. Carhart, 550 U.S. ____ (2007).

In light of Carhart, SCOTUS vacated the judgment of U.S. Court of Appeals for the Fourth Circuit in Richmond Medical Center for Women v. Hicks, 409 F.3d 619 (4th Cir. 2005), in which the court of appeals held that a Virginia state law criminalizing “partial birth infanticide” was unconstitutional because it contained no exception to allow for protecting the mother’s health. SCOTUS ordered the Fourth Circuit to reconsider its decision in light of Carhart.

The Fourth Circuit issued its ruling on remand yesterday, holding 2-1 that the Virgina statute is still unconstitutional despite Carhart. Richmond Medical Center for Women v. Hicks (pdf, 61 pages). Looks like good news for the constitutional right of choice, but appearances can and often are deceiving.

Carhart was based in large part on the Supreme Court’s finding that the federal “partial birth abortion” statute imposes criminal liability only where a doctor intentionally performs an “intact dilation and extraction” procedure. Thus, no liability attaches where the doctor intends to perform a “standard D&E” — the most common method of second-trimester abortions — that “accidentally” ends up becoming an intact D&E. That, said the Court, precluded a finding of facial unconstitutionality; the federal act did not impose an undue burden on a woman’s right to choose by placing doctors in fear of “accidental” criminal liability.

Yesterday’s decision in Hicks centered on whether the Virgina statute included the same sort of intent requirement as the federal law at issue in Carhart. The majority concluded that the Virginia statute contained no such requirement and thus imposed an undue burden via the threat of “accidental” criminal liability. The dissenting judge disagreed.

This is what the constitutional right recognized in Roe has come to: squabbling over scienter requirements and the grisly details of various medical procedures. That, of course, is likely what Justice Kennedy had in mind when he wrote the majority opinion in Carhart, one of the most paternalistic pieces of work ever to fall from a judge’s pen. You wimmins are all emotional and ill-informed, ya see, so Justice Kennedy tells you exactly what’s going to happen after you climb onto that gurney. After Carhart pretty much all challenges to restrictive abortion laws must be made on an as-applied basis, so what we saw in yesterday’s Fourth Circuit decision will be rule rather than the exception.

And it won’t be long before the Supreme Court starts talking about how “cumbersome” and “unworkable” Roe analysis has become. That’s the first step in doing away with Roe altogether, so please forgive me if I’m not all that pleased over yesterday’s developments.

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