RICHMOND (AP) – A judge lacked sufficient medical evidence to declare a law banning a type of late-term abortion unconstitutional, a lawyer for the state told a federal appeals court Tuesday.
William E. Thro, the state solicitor general, urged a three-judge panel of the 4th U.S. Circuit Court of Appeals to send the case back to U.S. District Judge Richard L. Williams for a trial. The court usually takes several weeks, or even months, to rule.
The Center for Reproductive Rights challenged a law passed by the 2003 Virginia General Assembly that outlaws a procedure generally performed in the second or third trimester in which a fetus is partially delivered before being killed. Anti-abortion activities call the procedure “partial-birth abortion.”
The statute is similar to a federal law signed by President Bush in November that was struck down in three federal courts because it does not have a health exception for the mother. The U.S. Supreme Court previously ruled a similar Nebraska law unconstitutional for the same reason.
Williams granted the plaintiffs’ motion for summary judgment, voiding the state law, in February. The Virginia statute also lacks a health exception, although it does provide an exception to save the mother’s life.
“The Supreme Court has made clear the need for a health exception when regulating abortion,” Suzanne Novak, a lawyer for the plaintiffs, told the appeals court.
Thro argued that Virginia’s law is more narrow than the Nebraska and federal statues, so no health exception is required. Virginia’s law bans destruction of the fetus if it is alive, and its head or the lower portion of its body up to the navel have emerged from the mother. The law also specifically exempts certain routinely performed abortion procedures, Thro said.
He said there is no evidence on whether the banned procedure is ever necessary to protect the mother’s health. That issue should be determined in a trial, Thro said.
Novak disagreed. She said a Richmond doctor stated in court papers that without the health exception, circumstances could arise during an abortion that would put him at risk of violating the statute.