Federal court criticized for upholding ‘gruesome’ abortion method

WASHINGTON – A federal appeals court’s May 20 decision overturning Virginia’s ban on partial-birth abortion thwarts “the clear and common sense of our state’s citizens that a child who is almost entirely born should never be the victim of this brutal practice,” according to the executive director of the Virginia Catholic Conference.

Speaking on behalf of the state’s two Catholic bishops, Jeff Caruso said he hoped a higher court would “remedy the grave harm done” by a panel of the 4th U.S. Circuit Court of Appeals, based in Richmond, Va.

By a 2-1 majority, the panel said Virginia’s Partial-Birth Infanticide Act of 2003 “imposes an undue burden upon a woman’s right to choose a pre-viability second-trimester abortion” and is therefore unconstitutional.

“I cannot imagine that protecting the gruesome practice of partial-birth abortion is what our country’s forefathers had in mind when they crafted our Constitution over 200 years ago,” Mr. Caruso told Catholic News Service May 21 in an e-mail. “Yet somehow two judges have found a way to declare Virginia’s ban on the procedure unconstitutional.”

The conference is the public policy arm of the state’s bishops – Bishops Paul S. Loverde of Arlington and Francis X. DiLorenzo of Richmond.

Judge M. Blane Michael, writing the majority opinion for himself and Judge Diana Gribbon Motz, said the Virginia law exceeded the parameters outlined by the U.S. Supreme Court in its April 2007 decision in Gonzales v. Carhart and its companion case, Gonzales v. Planned Parenthood, upholding as constitutional the federal Partial Birth Abortion Ban Act.

Judge Michael said the Virginia law failed to protect doctors who might “accidentally violate the act” by performing an “intact dilation and extraction,” which the law bans, while attempting to perform a standard dilation and extraction abortion, which is legal under Virginia law.

In the intact procedure, the unborn child is partially delivered and the skull is crushed to make delivery easier. In the standard procedure, the unborn child is dismembered in the womb before removal.

Dissenting Judge Paul V. Niemeyer said the majority was “ignoring explicit language” in the Virginia law in order to “find ambiguity … so as to be able to strike it down.”

“With a troubling decision, the majority now seeks to circumvent the Supreme Court’s ruling in Gonzales v. Carhart, unwittingly inviting the Supreme Court to spell out in this case that Virginia’s statute is likewise constitutional, because in the nature and scope of conduct prohibited, it is virtually identical to the federal statute,” Judge Niemeyer wrote.

Olivia Gans, president of the Virginia Society for Human Life, said her group would encourage Virginia Attorney General Bob McDonnell to appeal the decision to the Supreme Court, which had ordered the 4th Circuit to revisit the case in light of Gonzales v. Carhart.

Mary Spaulding Balch, state legislative director for the National Right to Life Committee, also urged McDonnell to appeal the decision.

“The majority opinion has used extremely contorted reasoning to reach an unreasonable decision,” Ms. Balch said in a statement. “Today’s decision flies in the face of common sense, the U.S. Supreme Court and the will of the majority of the people of Virginia.”

A spokesman for Mr. McDonnell said May 21 that the attorney general had not yet decided whether to appeal.

“We are extremely disappointed with the divided decision,” said J. Tucker Martin, Mr. McDonnell’s director of communications. “We are reviewing the panel opinion at this time and considering all possible courses of action.”

Catholic Review

Catholic Review

The Catholic Review is the official publication of the Archdiocese of Baltimore.