Yesterday’s ruling from the Fourth Circuit in this case, involving a facial challenge to Virginia’s ban on partial birth abortions, made headlines across the Commonwealth. I found a few aspects of the decision to be of particular interest.

Two important words – Perhaps the two most important words in the case are found in the very first sentence of the majority opinion by Judge Michael: facial challenge. (Slip op., at 3) These words imply a process by which the constitutionality of a statute is evaluated without regard to the individualized circumstances of a case. Instead, the court is asked to determine that the statute is, in essence, per se unconstitutional for some reason.

Specifically, the majority refers to the Commonwealth’s contention that the district court’s summary judgment order had insufficient factual support. The opinion finds this contention to be “beside the point” because the health exception requirement is “a per se constitutional rule.” Slip op., at 11.

Judge Niemeyer’s dissent spends considerable time on this point, arguing that it was inappropriate for the majority to permit such an attack, almost devoid of evidence. He attempts to distinguish the Nebraska statute that was struck down in 2000 (see below) from Virginia’s, thus reasoning that the differences prevented the kind of facial review employed by the majority. He also differs from the majority’s characterization of the health exception requirement as a per se rule, distinguishing holdings from other circuits on this very issue.

Hubris – The majority opinion does not come right out and use this word, but it is clearly implied in the Court’s description of the passage of this statute in 2003 by the General Assembly. Specifically, the Supreme Court of the United States ruled in 2000 (Stenberg v. Carhart, 530 US 914) that Nebraska’s ban on partial birth abortions was unconstitutional, since it did not contain any provision to protect the health (vis-à-vis the life) of the mother. Three years later, and in the face of this ruling, the Virginia legislature enacted a statute that mirrored Nebraska’s in this key respect.

The statute’s supporters (now including Judge Niemeyer) point to the differences they perceive in the two statutes, but these distinctions are unimportant to the majority. Judge Michael recites that language to protect the health of the mother was proposed as an amendment to the statute, but that amendment was rejected. This is the hubris part – given the opportunity, indeed the specific suggestion, to make the statute comply with the requirements of Carhart, the General Assembly instead seemingly thumbed its nose at the high Court. Politics aside, we can probably agree that this (at least perceived) approach is not likely to find favor in a federal court.

Issues adjudicated – The district court ruled in favor of the plaintiffs, and against the constitutionality of the statute, on five separate (though unquestionably related) grounds. The Fourth Circuit did not reach four of those; once it found the statute to be facially unconstitutional, it declined to address the other four. Those included the assertion that the statute unreasonably burdened a woman’s right to choose to have an abortion, and that it effectively banned “other safe gynecological procedures.” Having made its initial ruling, the majority found it unnecessary to spend judicial resources evaluating the other grounds of the trial court’s ruling. Judge Niemeyer does address them (slip op., at 35-39), so his is the only discussion we have, at the appellate level, of these issues.

The next step – While the Commonwealth may appeal directly to the Supreme Court, I think it’s more likely they will ask the full Court of Appeals for an en banc review. The rate at which the Supreme Court grants certiorari is dauntingly small – perhaps 1 ½ to 2% — and the Fourth Circuit is widely regarded as the most conservative appellate court in the nation. Those factors would seemingly make it easier to get a favorable ruling in Richmond than in Washington.

But the Commonwealth faces tough sledding no matter which course it chooses. Obtaining an en banc rehearing will require the affirmative vote of a majority of the Court’s regular active judges. Fed.R.App.P. 35(a) and Local Rule 35(b). There are presently thirteen active judges, so the Commonwealth will have to assemble seven votes. I have not counted noses on who is likely to vote which way, and would not presume to do so. But I view it as very unlikely, though not impossible, that the Court would grant an en banc rehearing.

The cost – If this ruling had been handed down a year ago, the language in one section in particular would have been very different – or perhaps absent. Near the end of the majority opinion, there is a discussion of the highly charged political nature of this issue. There is no question that abortion, specifically partial birth abortion, is a very sensitive and controversial topic. The Court notes the Supreme Court’s admonition that “[s]ome cost will be paid” by those who implement unpopular decisions in cases such as this. “The price may be criticism or ostracism, or it may be violence.” In acknowledgement of the tragedies of Atlanta and Chicago this year, the Court observes, “These words have special resonance in today’s climate,” but nevertheless justify an adherence to the Supreme Court’s mandates, representing as they do a respect for the rule of law.

In another time, federal judges were called upon to implement another unpopular mandate from the Supreme Court – forced busing of students to achieve racial desegregation in schools. One such judge, the late Walter Hoffman, who presided in the same judicial district in which this case arose, faced the less dangerous forms of this cost when he ordered desegregation of schools in southeastern Virginia, circa 1970. He was hounded by criticism in the press and elsewhere. People he formerly regarded as close acquaintances began crossing the street to avoid him when they saw him approaching.

Despite this “cost” of carrying out his responsibilities, Judge Hoffman never wavered from what he felt he had to do. He is said to have remarked at one point in this ordeal, “I will do my duty if it costs me my last friend on this earth.”

In “today’s climate,” where our cultural fabric has eroded to the point that fanatics think it fitting to wreak violence against judges and their families, yesterday’s ruling carries special significance. No one ever said that being a federal judge, at any level, would be all sunshine and roses. But doing one’s duty, in cases such as this, can indeed have costs that are terrible for the individual to face, and for our society as a whole to tolerate.


Today, June 3, a divided panel of the Fourth Circuit rules that Virginia’s ban on partial birth abortions is unconstitutional, since it does not contain provisions to protect the mother’s health. In Richmond Medical Center for Women v. Hicks, the panel affirms a district court’s decision in a case brought against (as official capacity defendants) the Commonwealth’s Attorneys of the City of Richmond and of Henrico County.

Judges Michael and Motz form the majority; Judge Niemeyer writes a dissenting opinion. One may reasonably expect a suggestion for rehearing en banc.