What Sen. Daniel Patrick Moynihan has called "infanticide and one would be too many" is once again legal in Virginia. Last week U.S. District Judge Robert Payne struck down the state's ban on partial-birth abortion, saying the law violated a woman's constitutional right to abortion and failed to provide an exception for the health and safety of the mother. Additionally, he said, the law was so vaguely worded that doctors couldn't know precisely what procedures were prohibited; a doctor might unwittingly conduct an illegal abortion and find himself in jail.
The ruling was not entirely unexpected. Mr. Payne had previously issued an injunction blocking enforcement of the law a year ago on grounds that it was unlikely to withstand judicial scrutiny. Attorney General Mark Earley, backed by Gov. James Gilmore, hastily appealed the injunction, and a federal appeals court allowed the law to stand. Mr. Earley has said he will appeal this decision too. Said Mr. Earley in a statement: "We still believe Virginia's statute is well-reasoned, legally sound and crafted narrowly enough to pass constitutional muster. It is designed for one purpose: to ban this disturbing procedure which, by all accounts, borders on infanticide."
Judge Payne's ruling would have one believe that partial-birth abortion is something that a doctor could perform almost by accident or mistake; there he is performing a legal procedure, when, oops, he finds he has committed infanticide. But partial-birth abortion is not easily confused with something else. There is a "death blow" specific to the procedure. Doctors know what they're doing.
So gruesome did Virginia lawmakers find the procedure that they voted overwhelmingly to ban it, and that's saying something. …