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Location: Strasburg, Virginia

Wednesday, February 22, 2006

Va. appeal may be decided when U.S. high court hears case; B1

Note: This is a sidebar to a national story about the U.S. Supreme Court's decision to hear Gonzales v. Carhart, a case which struck down a national partial birth abortion ban. But you knew that, because you bought the paper. Right?--GS

By Garren Shipley
Daily Staff Writer

When the U.S. Supreme Court decides whether a federal ban on the procedure often called partial-birth abortion is legal, Virginia will be watching closely.

The high court may be deciding if Virginia’s law is constitutional at the same time.

Attorney General Bob McDonnell filed a brief with the U.S. Supreme Court on Monday, asking the court to combine an appeal of Virginia’s statute with Gonzales v. Carhart, an appeal of a lower court decision to strike down a similar federal statute.

“If this court chooses to grant review in Gonzales, it should either hold this petition pending the outcome … or should grant review and schedule argument for the same time Gonzales is argued,” McDonnell wrote.

Justices have not scheduled Virginia’s certiorari request for a conference, a court spokes-person said Monday. If four justices decide to hear the case, it would either be scheduled for argument or included with Gonzales.

A federal court in Nebraska struck down a 2003 federal law that prohibited doctors from performing the procedure, where the fetus is partially removed from the womb and its skull is either punctured or crushed.

Supporters say the method is the safest way to end a pregnancy for women with serious health problems.

Court action on the Gonzales case will generate a great deal of interest, since it is the first time the high court has considered an abortion issue since the appointment of two new, conservative members — Chief Justice John Roberts and Associate Justice Samuel Alito.

Virginia lawmakers passed restrictions on the procedure, also known as dilation and extraction, during their 2003 session over the objections of then-Gov. Mark R. Warner.

Richmond Medical Center for Women immediately sued the commonwealth’s attorneys in Richmond and Henrico County to block enforcement of the law.

The case eventually wound up before the 4th Circuit Court of Appeals in Richmond, where last summer a three-judge panel struck down the law as unconstitutional, as it did not provide an exception for the procedure to be performed if it was necessary to protect the life and health of the mother.

An appeal for rehearing also was denied.

Before leaving office in January, Attorney General Judith Jagdamann started the process of appealing the 4th Circuit’s ruling to the U.S. Supreme Court.

Her successor, McDonnell, is continuing the process.

“We are optimistic the Supreme Court ruling will make clear that the federal partial birth abortion ban is constitutional, and therefore so is the commonwealth’s,” said Tucker Martin, a spokesman for McDonnell.

In Monday’s filing, McDonnell argues that the 4th Circuit erred by striking the law down without question on the basis that it contained no “life and health” provision.

Previous Supreme Court decisions have held that to be an improper way to view the law, he wrote, when a law may only be partially unconstitutional.

“Federal courts should ‘enjoin only the unconstitutional applications while leaving other applications in force,’” he wrote, citing a 2005 case.

The Center for Reproductive Rights, which is arguing against Virginia law, did not immediately return calls for comment Tuesday.

But Suzanne Novak, a staff attorney for the nonprofit advocacy group, has previously called the Virginia statute [a] “dangerous law” that will “put women at risk by preventing physicians from performing the safest and most common second trimester abortion procedures with no exception for their patients’ health.”