Richmond Medical Center for Women v. Herring: First Fourth Circuit Panel Decision

We reconsider the constitutionality of a Virginia statute that outlaws what is termed “partial birth infanticide.” Va.Code Ann. § 18.2-71.1 (the Virginia Act or the Act). Reconsideration is required in light of Gonzales v. Carhart (Carhart II), 550 U.S. —-, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007), which rejected a facial challenge to the federal partial birth abortion statute prohibiting the intact dilation and evacuation (D & E) procedure. Critical to the Court’s holding in Carhart II is the federal statute’s requirement that a doctor intend at the outset to perform an intact D & E, according to the Court, this requirement of intent at the outset ensures that the federal statute does not impose criminal liability on a doctor who sets out to perform a standard D & E that by accident becomes an intact D & E. As a consequence, the federal statute does not prohibitthrough fear of criminal liability-doctors from performing the standard D & E procedure, the procedure employed in the vast majority of (previability) second trimester abortions. In contrast, the Virginia Act has no provision requiring intent at the outset of the procedure. The Virginia Act thus imposes criminal liability on a doctor who sets out to perform a standard D & E that by accident becomes an intact D & E, thereby exposing all doctors who perform standard D & Es to prosecution, conviction, and imprisonment.