Here the Washington Post writes about the Fourth Circuit panel's split decision on the constitutionality of the 2003 Virginia partial birth infanticide statute, including some speculation about whether the Commonwealth will seek rehearing en banc and what the en banc court might do.
Judge Michael and Judge Motz, the two judges in the majority, are the Fourth Circuit's version of left-wingers, which means not especially but relatively liberal.
Here is the story from the Richmond paper, and here is the story from the Norfolk paper. The latter quotes Del. Marshall as saying, "They are finding excuses to say that someone who is 90 percent born is not living . . . They’re talking about abortion; we’re talking about life."
Lyle Denniston at SCOTUSBlog has this interesting post on the case, which begins: "A decision by the Fourth Circuit on Friday may set the stage for the next test in the Supreme Court of the constitutionality of laws that ban so-called 'partial birth' abortions." Mr. Denniston adds this:
"Another significant facet of the majority ruling was that it made clear, for the first time, that the Fourth Circuit does not apply in the abortion context the normal rule for judging facial challenges to statutes. The so-called “Salerno” rule says that a facial challenge may succeed only if there is proof that in no set of circumstances can a law be applied constitutionally. There is a split in the circuits on whether the Salerno approach does govern in cases involving facial challenges to abortion laws, and some analysts had counted the Fourth Circuit among the minority of courts applying Salerno to such cases. Friday’s ruling concludes just the opposite. (This is an issue the Supreme Court itself will be confronting in its next Term, because the Justices on May 23 agreed to hear it in the New Hampshire abortion case, Ayotte v. Planned Parenthood of Northern New England [04-1144]. That case, however, involves a parental notice abortion law, not a “partial-birth” statute.)"
Steve Emmert in his commentary opines that it is "very unlikely, though not impossible, that the Court would grant an en banc rehearing." One possible reason why he may be right, is that Judges Wilkinson and Luttig are among the Top 20 candidates for the Supreme Court. Their friends and supporters might not want them to have to rule in an en banc abortion case at this time, in the manner suggested by the plot of the fictional Ninth Circuit Judge and Supreme Court nominee Caroline Clark Masters in Richard North Patterson's novel, Protect and Defend.