[JURIST] The US Court of Appeals for the Fourth Circuit [official website] ruled [decision, PDF] Tuesday that a Virginia law [text] banning certain types of late-term abortions is unconstitutional. In 2005, a panel of judges on the same court declared the law unconstitutional [opinion, PDF; JURIST report] because it lacked an an exception to protect the mother's health, but the US Supreme Court ordered the court to reconsider the case in light of a 2007 Supreme Court decision [text; JURIST report] upholding a similar federal law [PDF text] which also lacks a health exception. The Virginia court refused to apply the reasoning from the Supreme Court case, holding that the federal law was materially different because it protects doctors who accidentally violate the ban after beginning what they believed would be a legal procedure. Accordingly, the court found that the Virginia law "imposes an undue burden on a woman’s right to obtain an abortion," because doctors would likely refuse to perform late-term abortions to avoid the risk of criminal liability. AP has more.

The abortion procedure at issue in the case is called "D&E" or dilation and evacuation, and according to the court, is a common procedure for second and third trimester abortions. A standard D&E, which is performed in utero, is explicitly excepted from the kinds of procedures banned by the Virginia law. But an "intact" D&E is what opponents refer to as "partial birth" abortion [JURIST news archive], and occurs when certain "anatomical landmarks" exit the womb during the procedure, which can accidentally occur during a planned "standard" D&E procedure.