The Fourth Circuit struck down Virginia’s ban on partial-birth infanticide (in which the foetus is partially delivered, up to the navel, and then killed).  In 2005, the Fourth Circuit struck down the ban; after the Supreme Court ruled on a similar, Congressional ban in 2007, it ordered the Fourth Circuit to reconsider its decision in light of Gonzales v. Carhart. 

The Fourth Circuit stated that Virginia’s ban, which is very similar to the federal ban, does not meet constitutional muster because there is no scienter requirement: a doctor does not need to intend to perform a partial-birth abortion, at the onset of the surgical procedure, in order to be criminally liable.

A quick history of PBA bans and the Court’s responses: In 2000, a Nebraska ban on partial-birth abortion was overturned because it did not make an exception for the health of the mother and it was unconstitutionally vague.  The Stenberg v. Carhart Court stated that the terminology (a “substantial portion” of the foetus must be outside the womb) was vague.  In 2003, President Bush signed into law another ban on partial-birth abortion.  This ban came complete with Congressional findings that PBA is never necessary for the health of the mother and included an anatomical description of the act: the trunk of the foetus, beyond the navel, must be beyond the cervix of the mother, or the entire head must be delivered, in order for the abortion to be unlawful.  (Note that a PBA cannot be used in emergency situations: it requires much greater cervical dilation than D&E abortions, which is extremely time-consuming.  Furthermore, the greater forced dilation increases the likelihood of future cervical incompetence, thus jeopardising the woman’s future reproductive capacity.)   In 2007, the Supreme Court upheld this law.  In so doing, it stated that scienter requirements “alleviate vagueness concerns:”

Because a doctor performing a D&E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as “a trap for those who act in good faith.” Colautti, supra, at 395 (internal quotation marks omitted).

A vagueness concern is only applicable in a facial challenge.  Generally, courts ought to be reluctant to strike down laws as being facially invalid - that is, when there is almost no possible application of the law that meets Constitutional muster.  Arguably, the Virginia law, which prohibits the deliberate act of performing a partial-birth abortion, may apply in functionally the same manner as the federal law: one can read “deliberate” to encompass the desire to perform the procedure, not the performance of it as a surgery goes bad.  The Fourth Circuit, however, has overstepped its bounds: Virginia’s law is not necessarily vague (the scienter requirement is a sufficient, but not necessary, condition to overcoming a vagueness objection), and it has many applications to physicians who deliberately perform an abortion in the manner proscribed by the law.  Such an objection to the law would be valid only when brought by a physician who was prosecuted under the law in a manner that may be inconsistent with the Constitution; the fact that such a prosecution could possibly occur, sometime in the future, under one possible reading of the Act, does not render it facially unconstitutional.

Let’s hope that Virginia appeals and the Supreme Court grants cert.