Judge J. Harvie Wilkinson III

Richmond, Va., Jun 26, 2009 / 03:23 am (CNA).- The Fourth U.S. Circuit Court of Appeals in a 6-5 decision on Wednesday upheld Virginia’s partial-birth abortion ban. In his concurring opinion, one judge wrote that the law protects the “weakest” and “most helpless” and condemned the use of the Constitution to justify “dismembering” a partly born child and “crushing” its skull.

In its ruling “Richmond Medical Center v. Herring,” the court said the 2003 Virginia law does not unduly burden a woman’s legal right to terminate a pregnancy by more conventional means. It also ruled the law is clear about the type of procedure banned and adequately protects women’s health.

The decision reverses a May 2008 2-1 panel decision which struck down the law, which is similar to a federal statute prohibiting a procedure in which the baby is partially delivered and then killed.

According to the Alliance Defense Fund, the U.S. Supreme Court ordered the Fourth Circuit panel to revisit its original September 2007 decision that the ban was unconstitutional. The Supreme Court had upheld a partial-birth abortion ban in the case “Carhart v. Gonzales.”

Judge Paul V. Niemeyer authored the majority opinion in Wednesday’s decision, which won the concurrence of Judge J. Harvie Wilkinson III.

"A partially born child is among the weakest, most helpless beings in our midst and on that account exerts a special claim on our protection," Judge Wilkinson wrote.

“The fact is that we--civilized people—are retreating to the haven of our Constitution to justify dismembering a partly born child and crushing its skull,” his opinion continued. “Surely centuries hence, people will look back on this gruesome practice done in the name of fundamental law by a society of high achievement. And they will shudder.”

According to the Associated Press, Judge M. Blane Michael in a dissenting opinion said the law was unconstitutional because it imposes criminal liability on any doctor who intends to perform a “standard D&E” that “by accident becomes an intact D&E.”

Opponents of the law unsuccessfully argued it was unconstitutional on the grounds the procedure was too broadly defined it would prohibit the most common form of second-trimester abortion, known as a “dilation and extraction.”

In medical terminology, a partial-birth abortion is described as an “intact” dilation and extraction.

“To hold the Virginia Act facially unconstitutional for all circumstances based on the possible rare circumstance presented... is not appropriate under any standard for facial challenges,” the Fourth Circuit’s Wednesday decision read. 

It added that the law provides “sufficient clarity” about prohibited conduct to enable a doctor of “reasonable intelligence” to avoid criminal liability.

Violation of the law is a felony punishable by up to 10 years in prison and a fine of up to $100,000.

All six judges who upheld the law were appointed by Republican presidents while the five dissenters were Democratic appointees.

Jordan Lorence, Senior Counsel for the pro-life Alliance Defense Fund, said the initial ruling of the three-judge panel “conflicted significantly” with the U.S. Supreme Court’s decision.

“No one should be allowed to decide that an innocent life is worthless. Virginia has legitimately chosen to protect innocent life from a terrible procedure, and the court was right to uphold Virginia’s law,” he added.

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