McDonnell Appeals Decision On Virginia Partial-Birth Infanticide Act.(Bob McDonnell)

Virginia Attorney General Bob McDonnell is asking the full Fourth U.S. Circuit Court of Appeals to review the decision of a three-member panel of that court which struck down Virginia's Partial-Birth Infanticide law. On May 20 a split panel overturned the law, concluding that it imposed an "undue burden" on the right to abortion.

In a statement McDonnell said, "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." The petition for rehearing by the full Fourth Circuit was filed June 2.

According to McDonnell's office, the court is expected to rule in about a month or two on whether the full court will review the case on the merits. If it does, it will schedule oral arguments, most likely in the fall.

In Richmond Medical Center v. Herring the majority again shot down Virginia's 2003 Partial-Birth Infanticide law. The majority consisted of judges M. Blane Michael and Diana Gribbon Motz, the same two judges who quashed the law in 2005. But as is often the case in abortion jurisprudence, the blistering dissent, authored by Judge Paul V. Niemeyer, made for far better, more thoughtful reading. Niemeyer also wrote a withering critique three years ago.

The panel's 2005 decision had been vacated by the United States Supreme Court for reconsideration in light of the High Court's 2007 Gonzales v. Carhart decision upholding the federal Partial-Birth Abortion Ban Act. In his dissent Niemeyer observed that Michael and Motz may be "unwittingly inviting the Supreme Court to spell out in this case that Virginia's statute is likewise constitutional." Why? "[B]ecause in the nature and scope of conduct prohibited, it is virtually identical to the federal statute upheld as constitutional in Gonzales v. Carhart."

In what judge Niemeyer retorted was a "glaring misreading" of the Virginia law and Gonzales v. Carhart, Michael and Motz argued that the state law is different from the federal Partial-Birth Abortion Ban Act. They claimed that, under the law, abortionists are not protected when the standard second-trimester abortion "accidentally" becomes what the state calls partial-birth abortion infanticide.

Out of fear of being prosecuted, these abortionists will not perform any second-trimester abortions, Michael wrote. "The Virginia act is therefore unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion."