The New York Times says that a 3-person panel from the U.S. Appeals Court 4th Circuit has rejected the state’s partial birth abortion law, a ban modeled on the federal Partial-Birth Abortion Ban Act that was upheld by the U.S. Supreme Court last year. Why did this happen? Seems like it should have been a no-brainer.
In fact, it probably would have been if Virginia legislators hadn’t gone the extra mile trying to do what’s right.
The key difference between the two laws, Judge M. Blane Michael wrote for the majority, was that the federal law imposes criminal charges only when doctors intend at the outset to perform the procedure, while Virginia law also made it a crime for doctors to perform the prohibited procedure by mistake.
Read simply, that does seem like a bad idea. It’s easy to imagine a case in which the good doctor the tools of his/her "trade" ready to work on a slim but pregnant woman, only to discover that she’s mislead the doctor as to how far along she is. Now what? That far, the panel’s ruling makes sense.
Unfortunately, that’s not what the judges meant by mistake. Their definition of a mistake is what we lay people call giving birth.
“Unlike the federal act,” Judge Michael wrote, “the Virginia act subjects all doctors who perform” the more common procedure “to potential criminal liability, thereby imposing an unconstitutional burden on a woman’s right to choose.”
The Virginia law, Judge Michael wrote, imposes criminal liability on doctors who set out to perform the more common procedure “but who nonetheless accidentally deliver the fetus to an anatomical landmark and who must perform a deliberate act that causes fetal demise in order to complete removal.” The landmarks in question are passed, in the law’s words, when “the infant’s entire head” or “trunk past the navel” is “outside the body of the mother.”
I see now that I’m a simpleton. (Rhetorical – no need to agree to vociferously…) The baby that was just born was obviously just a simple medical error. It’s OK to correct the mistake now, doc, and never mind that oath you took.
There was a dissenting vote, which gives me hope that there’s sense left in the judiciary branch.
“The majority’s selective use of statutory language and its rationalizations,” Judge Niemeyer wrote, “represent nothing less than a strong judicial will to overturn what the Virginia Legislature has enacted for the benefit of Virginia’s citizens and what, in materially undistinguishable terms, the Supreme Court has upheld as constitutional.”
In rebuttal, abortion rights lawyer Stephanie Toti, who represented the plaintiffs, gave this weak reply:
“The only way for doctors to obey this law would be to stop performing the most common second-trimester abortion methods."
Sounds like a good idea. As a point of information, most European nations allow abortion up through 12 weeks of gestation, although there are some outliers. There’s no reason for the U.S. not to follow in their footsteps and solidify our nation’s rules at the same point.
Interestingly, in Germany state-mandated counseling is required prior to having an abortion "to inform the woman that the unborn have a right to life and to try to convince her to continue her pregnancy." Also a good idea, the caterwauling from the left notwithstanding.
Another important restriction worth considering would be to prohibit the abortion of a child whose father is willing and able to assume responsibility for medical costs and take full custody at birth. Such cases may be far an few between, but the principle is important.
While I believe that abortion is the worst crime against God an "ordinary" person is likely to commit, I do support the rights of parents – plural, when applicable – to the procedure at their discretion.
Why? Because outside of some reasonable, nearly universal rules, it’s not for me to decide for them. Neither it is for the appeals court to diametrically oppose reasonable restrictions imposed by our elected representatives, the virtues of judicial activism notwithstanding.