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Abortion Ban


Virginia's ban outlaws a safe abortion procedure. Va. Code Ann. § 18.2-71.1 (Enacted 2003).

Virginia enacted a law which bans a safe, medically appropriate abortion procedure. When the law was enacted, a federal court enjoined its enforcement. In the wake of the Supreme Court's decision in Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Supreme Court remanded the case back to the Fourth Circuit court for further proceedings. Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004), aff'd, 409 F.3d 619 (4th Cir. 2005), vacated and remanded sub nom Herring v. Richmond Med. Ctr. for Women, 127 S. Ct. 2094 (2007). Upon remand, a three-judge panel of the Fourth Circuit found the law unconstitutional because it imposes an undue burden on a woman's right to choose. This decision distinguished the Virginia law from the federal ban upheld in Gonzales v. Carhart. Richmond Med. Ctr. v. Herring, No. 03-1821, slip op. (4th Cir. May 20, 2008). However, in an en banc hearing of the full 11-member Fourth Circuit, the court reversed the panel's earlier decision, upholding the ban in a 6-5 opinion on the basis that the Virginia law did not constitute an undue burden on a woman's right to choose. Richmond Med. Ctr. v. Herring, Nos. 03-1821, 04-1255, 2009 WL 1783515 (4th Cir. June 24, 2009).

Virginia's law makes any abortion procedure that falls within a broad definition (except suction curettage, suction aspiration, and certain dilation and evacuation procedures) a felony, unless necessary to prevent a woman's death and the physician takes every medically reasonable step to preserve the life and health of the fetus.  A procedure shall not be deemed necessary to prevent the death of the woman if completing the delivery of the "living infant" would also prevent the death of the woman.  The woman is exempt from prosecution under this statute.  Va. Code Ann. §18.2-71.1 (Enacted 2003). 

In addition, a court held that Virginia's previous ban, enacted in 1998, was unconstitutional because it had no exception to protect women's health and issued a permanent injunction prohibiting its enforcement.  Richmond Med. Ctr. for Women v. Gilmore, 224 F.3d 337 (4th Cir. 2000).  The law was subsequently repealed.  See Va. Code Ann. §18.2-74.2 (Repealed 2003).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.

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