Judge Upholds Virginia Ban on ‘Partial-Birth’ Abortions

Just before midnight Tuesday, a federal judge reversed a lower court ruling and preserved--at least for now--Virginia’s new ban on late-term, “partial-birth” abortions.

J. Michael Luttig, a 44-year-old federal appeals judge from McLean, Va., known for his conservative philosophy, rejected a federal district court judge’s ruling that the Virginia ban was too vague and likely unconstitutional.

Luttig’s ruling, which abortion rights advocates said they will appeal, put Virginia’s U.S. 4th Circuit Court of Appeals in conflict with courts in all 17 other states where bans on the late-term procedure have been challenged.

He dismissed the lower court’s contention that Virginia’s law could be interpreted as a ban on abortions during the first six months of pregnancy or that it is unconstitutional because it does not include a clause guaranteeing a woman’s right to a late-term abortion if her health is at risk.

The “undisputed purpose” of Virginia’s ban, Luttig said in his 18-page opinion, is to bar any procedure in which a physician delivers a fetus, ruptures its skull and then dislodges it from a woman’s body, a method of abortion that Virginia clinics challenging the ban say they do not use.

Luttig’s ruling came one year to the day after he issued a similar ruling that allowed the state to require teenagers to notify a parent before having an abortion, a statute that is still under challenge before the circuit.

Under 4th Circuit Court rules, appellants in “emergency” cases--those that involve some type of deadline--can choose to have their appeal heard by a single judge, rather than the usual three-jurist circuit panel.

On Monday, 4th Circuit Court clerks said, Virginia Deputy Atty. Gen. William H. Hurd’s office contacted Luttig’s court and said the state would send the judge an appeal to preserve Virginia’s law the next morning.

Abortion-rights advocates protested and sought a three-judge appeals panel, but Luttig declined.