Do I hear, "rehearing en banc"?

Today the United States Court of Appeals for the Fourth Circuit affirmed a district court’s ruling that Virginia’s partial birth abortion ban was unconstitutional.

The opinion was written by Judge Michael, joined by Judge Motz, two of the very few moderates on that court, and here are some excerpts:

This case involves a facial challenge under the Fourteenth Amendment
to a Virginia statute that attempts to criminalize “partial birth abortion,” which the statute terms “partial birth infanticide.”

Chapters 961 and 963 of the 2003 Acts of the Virginia General Assembly (“the Act”) make it a Class 4 felony for a person to knowingly perform “partial birth infanticide.” Va. Code Ann. § 18.2-71.1.

A Class 4 felony in Virginia is punishable by a prison term of up to ten years and a fine of up to $100,000. Id. § 18.2-10. The Act defines “partial birth infanticide” as any deliberate act that (i) is intended to kill a human infant who has been born alive, but who has not been completely extracted or expelled from its mother, and that (ii) does kill such infant, regardless of whether death occurs before or after extraction or expulsion from its mother has been completed.

The Act’s ban of certain abortion procedures does not provide an exception for instances in which an otherwise banned procedure is necessary, in appropriate medical judgment, to preserve a woman’s health. Indeed, the Virginia General Assembly rejected proposed amendments that would have provided a statutory exception
for some circumstances when a woman’s health was at risk.

[snip]

This alone is enough to affirm the district court’s judgment invalidating the Act because, again, any statute prohibiting the intact D&E/D&X procedure necessarily “creates a significant health risk” and therefore “must contain a health exception.” The Commonwealth argues that summary judgment was improper because the plaintiffs did not present substantial medical authority for the proposition that a health exception is needed in this particular statute.

The district court concluded otherwise, but that is beside the point. For Carhart established the health exception requirement as a per se constitutional rule. This rule is based on substantial medical authority (from a broad array of sources) recognized by the Supreme Court, and this body of medical authority does not have to be reproduced in every subsequent challenge to a “partial birth abortion” statute lacking a health exception.

Judge Niemeyer, however, dissented:

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.

The thing of it is, the Fourth Circuit consists of 14 judges. Three judges hear a case at any one time, but the losing party can petition to have a case reheard with all 14 judges sitting. The Circuit can, itself, vote to rehear a case even with no petition. Though rehearings are supposed to be used very sparingly, the Fourth Circuit is notorious for rehearing any case in which, by chance, two of the few moderates manage to sit on the same panel and reach a reasonable decision — which is exactly what happened here.

One interesting aspect of the case, though, is that Virginia argued that the plaintiff should not be permitted to challenge the statute on its face. That is, Virginia argued that the statute could not be challenged until a woman came along with a health need for this kind of abortion. The court, based on its own prior precedent, rejected the argument.

However, this is a big issue that the Supreme Court will soon be deciding. I wrote about it on my own blog here; it’s a dry procedural point, but a crucial one.

I expect that if there is no rehearing, the case will essentially be held in limbo until the Supreme Court decides its own abortion case next Term.

(via How Appealing)