In a 2-to-1 decision, a panel of the United States Court of Appeals for the Fourth Circuit ruled that the law was more restrictive than the federal Partial-Birth Abortion Ban Act, which the United States Supreme Court upheld last year in Gonzales v. Carhart.Both laws prohibited the procedure known medically as intact dilation and extraction. It involves removing an intact fetus and, typically, piercing or crushing its skull. The more common second-trimester abortion procedure, dilation and evacuation, involves dismembering the fetus in the uterus.
The key difference between the two laws, Judge M. Blane Michael wrote for the majority, was that the federal law imposes criminal charges only when doctors intend at the outset to perform the procedure, while Virginia law also made it a crime for doctors to perform the prohibited procedure by mistake.
"Unlike the federal act," Judge Michael wrote, "the Virginia act subjects all doctors who perform" the more common procedure "to potential criminal liability, thereby imposing an unconstitutional burden on a woman's right to choose."
The Virginia law, Judge Michael wrote, imposes criminal liability on doctors who set out to perform the more common procedure "but who nonetheless accidentally deliver the fetus to an anatomical landmark and who must perform a deliberate act that causes fetal demise in order to complete removal." The landmarks in question are passed, in the law's words, when "the infant's entire head" or "trunk past the navel" is "outside the body of the mother."
http://www.nytimes.com/2008/05...