In what appears to be an unprecedented manifestation of judicial activism, the Fourth Circuit on Tuesday struck down Virginia’s partial-birth abortion ban—a ban that is almost identical to the federal ban upheld last year by the United States Supreme Court (USSC) in Gonzales v. Carhart. First, the Court engaged in a circular pattern of logic to conclude that, while both statutes utilize the same definition, the Virginia statute is somehow unconstitutional. Further, while the Virginia statute clearly excludes D&E abortions from its prohibition, the Fourth Circuit found that the statute prohibits all D&E abortions. The Circuit also pandered to abortionists’ claims that a “small fraction” of D&E abortions accidentally result in D&X abortions (or partial birth abortions)—without requiring such claims to be backed up with real medical evidence. In all, the Circuit propagated a decision wrought with anti-life semantics and purpose—a decision that should and will, in all likelihood, result in USSC action.

Two Statutes, One Clear Meaning

In prohibiting “partial birth infanticide,” or “dilation and extraction” (D&X), Virginia’s statute possesses a definition identical to the federal statute’s definition of “substantially expelled or extracted from its mother”: in the case of a headfirst presentation, the infant’s entire head is outside the body of the mother, or, in the case of breech presentation, any part of the infant’s trunk past the navel is outside the body of the mother. This definition was undisputedly upheld by the Court in Gonzales.

Moreover, Virginia’s statute explicitly excludes other forms of late-term abortions from its prohibition, stating particularly that D&X shall not under any circumstances include the dilation and evacuation (D&E) abortion procedure involving dismemberment of the fetus prior to removal from the body of the mother.

Thus, for all intents and purposes, the Virginia statute and the federal statute proscribe the same act.

Yet the Fourth Circuit did not agree. When the Circuit’s opinion is examined, however, it becomes clear that the Circuit engaged in linguistic gerrymandering—it had an already-determined conclusion in mind, and utilized all forms of circular logic in order to support its unabashedly anti-life agenda.

Examples of Linguistic Gerrymandering and Circular Logic

The Fourth Circuit relies heavily on the USSC’s determination in Gonzales that the federal statute “prohibits a doctor from intentionally performing an intact D&E,” but “does not prohibit the [standard] D&E procedures in which the fetus is removed in parts.” The Circuit focuses on the fact that the Virginia statute does not [allegedly] protect abortionists from “accidentally” performing D&E, because the statute does not [again, allegedly] include an “intent” requirement. The Circuit then goes on to make the extraordinary claim that, because any D&E abortion can accidentally result in a D&X abortion, the statute prohibits all D&E abortions.

This is a red herring. As already mentioned, the Virginia ban specifically excludes other late term abortion procedures, including D&E. In fact, the Virginia ban is in essence more protective of physicians than is the federal ban in this enumeration. In no way can the Fourth Circuit declare that the Virginia ban will “chill” the practice of D&E abortions, because on the face of the ban those abortions are excluded from prosecution.

In other words, despite the fact that neither the federal nor the Virginia statutes prohibit D&E abortions, the Fourth Circuit struck Virginia’s statute because it does not do so in the same manner in which the federal statute does. The Fourth Circuit disregards the fact that the end is the same: D&E abortions can still be performed. It instead focuses on the means by which Virginia accomplished this standard. This is not at all what the USSC had in mind.

Another example is the Circuit’s continual reference to the “small fraction” of D&E abortions that result in the head of the unborn child becoming lodged, forcing the abortionist to resort to D&X. This “small fraction” language is used throughout the opinion, but never does the Circuit report that any witness before the trial court could actually provide a percentage or ratio of abortions to support that claim. Without such evidence, the simple claim of one abortionist witness that a “small fraction” of D&E abortions end in D&X is purely hypothetical—and the USSC made clear in Gonzales that such hypothetical claims are not proper in facial challenges.

A third example of the Fourth Circuit’s blatant refusal to abide by USSC precedent is its failure to abide by the customary rules of statutory construction—namely, that a court should do everything in its power to preserve the constitutionality of a statute. Here, the Circuit could have easily “read” into the act an “intent” provision. This would have been particularly easy given the statute’s clear provision that D&E abortions are not prohibited. But instead, the Circuit decided to ignore this possibility and strike the entire statute.

Conclusion

It is significant here that the partial birth abortion statutes of Missouri and Utah were also enjoined pending litigation when the USSC decided Gonzales. However, contrary to the Fourth Circuit, those courts found the states’ prohibitions constitutional, and the prohibitions are now in force. The Fourth Circuit is the only court since Gonzales to hold a partial birth abortion statute unconstitutional.

In light of the clearly constitutional language and the precautions taken by the state of Virginia to exclude other abortion procedures, the Fourth Circuit’s decision on Tuesday is nothing short of judicial activism. Thus, the Circuit’s decision should, and in all likelihood will, result in further action by the United States Supreme Court.