RICHMOND, Va. — A Virginia law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban was upheld by the U.S. Supreme Court, a federal appeals court ruled Tuesday.
The 2-1 decision by a panel of the 4th U.S. Circuit Court of Appeals affirms the same court's 2005 ruling striking down the law.
The Supreme Court had ordered the appeals court to take another look at Virginia's statute after the ruling on the federal ban.
The appeals court cited a key difference between the federal and state bans on the procedure that abortion opponents call "partial-birth abortion." The federal law protects doctors who set out to perform a legal abortion that by accident becomes the banned procedure. The Virginia statute provides no such protection.
The state has two weeks to ask the full federal appeals court to review the ruling in Richmond Medical Center vs. Herring, or 90 days to appeal to the Supreme Court. The Attorney General's Office "is reviewing all possible courses of action," spokesman J. Tucker Martin said.
The state law is unconstitutional "because it imposes an undue burden on a woman's right to obtain an abortion," Judge M. Blane Michael wrote in the majority opinion, joined by Judge Diana Gribbon-Motz.
The ruling means Virginia women will continue to have access to safe abortions through the second trimester of pregnancy, said Stephanie Toti, the Center for Reproductive Rights lawyer who represented abortion providers in the case.
"The court recognized Virginia's law is extreme — that it effectively banned the most common method of second-trimester abortion, and that is unconstitutional," Toti said.
The Family Foundation of Virginia said it hoped a higher court would reverse the ruling.
"It is disappointing that yet again just two people can thwart the will of the people, the action of a legislature, and simple justice for nearly born children," said Victoria Cobb, the organization's president.