Richmond Medical Center for Women v. Herring

This case challenges Virginia’s Partial Birth Infanticide Act of 2003 (the “Virginia Ban”), a method ban that targets the dilation and evacuation (D&E) method of abortion.

Filing Date: 6/18/2003

State: Virginia

Plaintiff(s): Richmond Medical Center for Women

Center Attorney(s): Stephanie Toti

Summary: This case challenges Virginia’s Partial Birth Infanticide Act of 2003 (the “Virginia Ban”), a method ban that targets the dilation and evacuation (D&E) method of abortion. , Click here to learn more about method bans >

D&E is the safest and most common method of abortion used after the first trimester of pregnancy. , The D&E method involves dilating the cervix and removing the fetus from the uterus using instruments. , Usually the fetus is removed in pieces, resulting in a “standard D&E.” , Sometimes, however, the fetus is removed intact, resulting in an “intact D&E.” , Anti-choice activists coined the inflammatory term “partial-birth abortion” to describe the intact variant of D&E. , Since the mid-1990s, they have waged a campaign to ban this method of abortion. , Most bans on so-called partial-birth abortion are so broadly worded that they encompass not only intact D&E, but also standard D&E and other abortion methods.

That is the case with the Virginia Ban. , Physicians risk violating this law every time they perform an abortion using the standard D&E method. , Thus, to avoid the threat of criminal prosecution under this law, physicians in Virginia must stop using the standard D&E method.

In Stenberg v. Carhart (“Carhart I”), the Supreme Court struck down a Nebraska statute banning so-called partial-birth abortion, holding that a method ban is unconstitutional (1) if it restricts use of the standard D&E method or (2) if it lacks a health exception. , Click here to learn more about Carhart I >

But seven years later, in Gonzales v. Carhart (“Carhart II”), the Supreme Court upheld a federal statute banning so-called partial-birth abortion, on the ground that it was limited to abortions performed using the intact D&E method. , The Supreme Court made that ruling despite the fact that the law did not contain an exception for situations when the procedure is necessary to prevent harm to a woman’s health, marking the first time in 35 years that the Supreme Court upheld a restriction on abortion that lacked a health exception. , Click here to learn more about Carhart II >

The Center filed suit against the Virginia Ban after the Supreme Court’s ruling in Carhart I but before its ruling in Carhart II. , It prevailed in the district court on several grounds, including that the law restricted use of the standard D&E method and that it lacked a health exception. , The U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s judgment that the law was unconstitutional, but based its decision solely on the law’s lack of a health exception. , After deciding Carhart II, the Supreme Court remanded the case back to the Fourth Circuit for further consideration. , The Fourth Circuit again affirmed the district court’s decision, this time on the ground that the law restricts use of the standard D&E method. , Subsequently, at Virginia’s request, the Fourth Circuit agreed to rehear the case en banc. , On October 28, 2008, all 11 active judges on the Fourth Circuit heard argument in the case. On June 24, 2009, the court upheld the law and, in a 6-5 decision, ruled that the law did not place an undue burden on a woman’s right to obtain an abortion.

Dr. Fizthugh will continue providing abortion for his patients with the same quality of care, but the law will limit his options. The Center plans to monitor the situation and will file another challenge if there is a circumstance in which he is threatened with enforcement of the law.

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