The dissent in Richmond Medical Center v. Hicks in the Fourth Circuit Court of Appeals *.


NIEMEYER, Circuit Judge, dissenting:

The Commonwealth of Virginia enacted a law in 2003, making it a criminal offense to kill a "human infant who has been born alive, but who has not been completely extracted or expelled from its mother." Va. Code Ann. [section] 18.2-71. 1(B). The statute applies to protect only a live fetus that has been delivered halfway into the world--i.e., either "the infant's entire head is outside the body of the mother" or, for a breech delivery, "any part of the infant's trunk past the navel is outside the body of the mother." Id. [section] 18.2-71.1 (D). In enacting this narrow provision, Virginia focused on preserving the life of infants and distinguishing its law from the Nebraska statute struck down as unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000), that prohibited an array of abortion methods.

Without recognizing the differences between the Nebraska statute and the Virginia statute and without taking into account the facts before this court, the panel majority reads Carhart to create a per se constitutional rule that requires any ban on partial-birth abortion to contain language protecting the health of the mother, regardless of the scope of the law, the nature of the relevant facts, and the actual need for a health exception. By so extending Carhart and applying a per se rule, the majority mechanically strikes down the Virginia statute as unconstitutional, without further analysis.

In addition, to strike down Virginia's statute on a facial challenge, the majority found it necessary to disregard our established standard for reviewing facial challenges of abortion laws in favor of a more liberal standard of review.

The majority's opinion is a bold, new law that, in essence, constitutionalizes infanticide of a most gruesome nature. The plaintiff Dr. William Fitzhugh, an abortionist, sought, through this lawsuit, to protect his ability to perform abortions by crushing infants' skulls or dismembering their limbs when they are inches away from being fully delivered alive without injury to the infant or to the mother. In his words, "My job on any given patient is to terminate that pregnancy, which means that I don't want a live birth." By expanding abortion rights to this extent, the majority unnecessarily distances our jurisprudence from that of the Supreme Court and from general norms of morality. I profoundly dissent from today's decision.


By casting Carhart's holding in the most general terms--that a State may not prohibit partial birth abortions without providing an exception for the health of the mother--the majority rejects Virginia's contention that the plaintiffs in this case did not present "substantial medical authority for the proposition that a health exception is needed in this particular statute." The majority reasons that "Carhart established the health exception requirement as a per se constitutional rule," ante at 11, and accordingly holds that "[b]ecause the Act lacks a health exception, it is unconstitutional on its face," ante at 14. This gross application of Carhart fails to take into account the nature of the Nebraska statute under consideration in Carhart, the factual findings on which the Supreme Court based its opinion, and the reach of the Supreme Court's actual holding.

Deferring momentarily the discussion of whether Carhart created a per se constitutional rule that statutes like the Nebraska statute must have a health exception, the Virginia statute is sufficiently different from the Nebraska statute that any would-be per se rule does not apply to it. The statute in Carhart provided that "[n]o partial birth abortion shall be performed in this state," except to save the life of the mother. Carhart, 530 U.S. at 921 (quoting Neb. Rev. Star. [section] 28-328(1)) (internal quotation marks omitted). The Supreme Court read the Nebraska statute to prohibit an array of abortion methods that included both "dilation and evacuation" ("D&E") and "dilation and extraction" ("D&X"). See id. at 938. D&E generally refers to destruction of the fetus in the uterus and removal of the destroyed and even dismembered fetus, while D&X generally refers to delivery of the fetus into the vagina in whole or in part and then destroying it, generally by sucking out the contents of the fetus' skull or by crushing the skull. Important to the case before us, the Supreme Court summarized the scope of the Nebraska law by stating that it "of course, does not directly further an interest 'in the potentiality of human life' by saving the fetus in question from destruction, as it regulates only a method of performing abortion." Id. at 930 (Supreme Court's emphasis).

Unlike the Nebraska statute, the Virginia statute protects the fetus itself, by prohibiting its destruction when it has been delivered alive into the world or at least halfway into the world. Also in contrast to the Nebraska statute, which only prohibited abortion procedures, the Virginia statute excepts from its coverage various abortion methods prohibited by the Nebraska statute (1) and limits itself to protecting the fetus by prohibiting the killing of a "human infant who has been born alive, but who has not been completely extracted or expelled from its mother ... regardless of whether death occurs before or after extraction or expulsion from its mother has been completed." Va. Code Ann. [section] 18.2-71.1(B). Yet, it is only by assuming that the Virginia statute is the same as the Nebraska statute that the majority is able to strike down the Virginia statute using its per se analysis.

The majority repeatedly characterizes the Virginia statute as banning abortion procedures, including the "intact D&E/D&X procedure," ante at 9-10, see also ante at 5, 6, 10-11, and, relying on that characterization, analogizes the Virginia statute to the unconstitutional Nebraska statute, which the Supreme Court interpreted to prohibit abortion procedures. By employing the analogy, the majority is thus able to argue that in prohibiting what might sometimes be the safest partial birth abortion procedure--the "intact D&E/D&X procedure"--Virginia infringes a woman's right to obtain a safe abortion. Ante at 9-11.

The majority overlooks, however, that if the fetus is not deliberately destroyed during an "intact D&E/D&X procedure," and it need not be to complete the procedure, Virginia's statute, unlike Nebraska's statute, does not prohibit the procedure. It is the killing of the fetus, not the abortion procedure, that is the concern of Virginia's statute. And while prohibiting a safe procedure increases a woman's health risks, no one has contended that banning the destruction of a fetus after an intact delivery implicates the mother's health at all. Rather than address this distinction directly, the majority asserts that the Virginia statute bans the intact D&E/D&X procedure because "the fetal calvarium (or skull) is collapsed during [that] procedure." Ante at 10. Such a simplistic view of the statute and abortion procedures fails to account for the Commonwealth's evidence that crushing the fetal skull is necessary neither to terminate a pregnancy after an intact delivery nor to obtain the purported safety advantages of the intact D&E/D&X procedure.

In addition to relying on the incorrect assumption that the Virginia statute is identical to the statute at issue in Carhart, the majority's analysis also depends on the unsupportable premise that Carhart created a per se constitutional rule. Correctly noting that Carhart holds that a "state cannot force women to use methods of abortion that present greater risks to their health than other available methods," ante at 8, the majority goes on to affirm the district court's opinion without assessing whether the Virginia statute would in fact force women to use riskier methods of abortion. In response to Virginia's defense that the plaintiffs in this case did not present "substantial medical authority for the proposition that a health exception is needed in this particular statute," ante at 11, the majority states that such a consideration is irrelevant because "Carhart establishes the health exception requirement as a per se constitutional rule," ante at 11.

Nothing in Carhart, however, indicates that the Court was creating a per se constitutional rule or that every abortion statute, regardless of whether it targets methods of abortion or the life of the fetus or some other state interest, must contain a clause that provides for the protection of the mother's health. To read Carhart so superficially loses focus of the protection being implemented there. As the Carhart Court said, "We shall not revisit those legal principles [providing basic protection to the mother's right to choose]. Rather, we apply them to the circumstances of this case." 530 U.S. at 921 (emphasis added). And, of course, the Court thus rendered its holding on the underlying principle being implemented: that a State cannot "interfere with a woman's choice to undergo an abortion procedure if continuing her pregnancy would constitute a threat to her health." Planned Parenthood v. Casey, 505 U.S. 833,880 (1992) (emphasis added) (citing Roe v. Wade, 410 U.S. 113,164 (1973)).

Moreover, in Carhart there was a full trial in which the district court made findings of fact and then considered how the Nebraska statute and the Constitution applied to those facts. In explicitly declining to conduct a facial review of the statute, the district court found itself unprepared to conclude that the law was unconstitutional "regardless of how it might be applied to a particular plaintiff," because such an inquiry would entail too many "unknown" factual circumstances. Carhart v. Stenberg, 11 F. Supp. 2d 1099, 1119-20 (D. Neb. 1998). The Supreme Court drew upon the district court's findings, as well as "related medical texts," and applied established preexisting abortion jurisprudence to that record. See Carhart, 530 U.S. at...

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