Academic journal article Issues in Law & Medicine

The Dissent in Richmond Medical Center V. Hicks in the Fourth Circuit Court of Appeals*

Academic journal article Issues in Law & Medicine

The Dissent in Richmond Medical Center V. Hicks in the Fourth Circuit Court of Appeals*

Article excerpt

NIEMEYER, Circuit Judge, dissenting.

The Commonwealth of Virginia enacted a law in 2003, making it a criminal offense to kill a "human infant who has been born alive, but who has not been completely extracted or expelled from its mother." Va. Code Ann. § 18.2-71.1(B). The statute applies to protect only a live fetus that has been delivered halfway into the world-i.e., either "the infant's entire head is outside the body of the mother" or, for a breech delivery, "any part of the infant's trunk past the navel is outside the body of the mother." Id. § 18.2-71.1(D). In enacting this narrow provision, Virginia focused on preserving the life of infants and distinguishing its law from the Nebraska statute struck down as unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000), that prohibited an array of abortion methods.

Without recognizing the differences between the Nebraska statute and the Virginia statute and without taking into account the facts before this court, the panel majority reads Carhart to create a per se constitutional rule that requires any ban on partial-birth abortion to contain language protecting the health of the mother, regardless of the scope of the law, the nature of the relevant facts, and the actual need for a health exception. By so extending Carhart and applying a per se rule, the majority mechanically strikes down the Virginia statute as unconstitutional, without further analysis.

In addition, to strike down Virginia's statute on a facial challenge, the majority found it necessary to disregard our established standard for reviewing facial challenges of abortion laws in favor of a more liberal standard of review.

The majority's opinion is a bold, new law that, in essence, constitutionalizes infanticide of a most gruesome nature. The plaintiff Dr. William Fitzhugh, an abortionist, sought, through this lawsuit, to protect his ability to perform abortions by crushing infants' skulls or dismembering their limbs when they are inches away from being fully delivered alive without injury to the infant or to the mother. In his words, "My job on any given patient is to terminate that pregnancy, which means that I don't want a live birth." By expanding abortion rights to this extent, the majority unnecessarily distances our jurisprudence from that of the Supreme Court and from general norms of morality. I profoundly dissent from today's decision.


By casting Carhart's holding in the most general terms-that a State may not prohibit partial birth abortions without providing an exception for the health of the mother-the majority rejects Virginia's contention that the plaintiffs in this case did not present "substantial medical authority for the proposition that a health exception is needed in this particular statute." The majority reasons that "Carharf established the health exception requirement as a per se constitutional rule," ante at 11, and accordingly holds that "[bjecause the Act lacks a health exception, it is unconstitutional on its face," ante at 14. This gross application of Carhart fails to take into account the nature of the Nebraska statute under consideration in Carhart, the factual findings on which the Supreme Court based its opinion, and the reach of the Supreme Court's actual holding.

Deferring momentarily the discussion of whether Carhart created a per se constitutional rule that statutes like the Nebraska statute must have a health exception, the Virginia statute is sufficiently different from the Nebraska statute that any would-be per se rule does not apply to it. The statute in Carhart provided that "[n]o partial birth abortion shall be performed in this state," except to save the life of the mother. Carhart, 530 U.S. at 921 (quoting Neb. Rev. Stat. § 28-328(1)) (internal quotation marks omitted). The Supreme Court read the Nebraska statute to prohibit an array of abortion methods that included both "dilation and evacuation" ("D&E") and "dilation and extraction" ("D&X"). …

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