                                                Filed:   August 22, 2000

                      UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                               No. 98-1930(L)
                                (CA-98-309-3)



Richmond Medical Center, etc., et al.,

                                                    Plaintiffs - Appellees,

             versus


James Gilmore, etc., et al.,

                                                   Defendants - Appellants.



                                 O R D E R



     The court amends its order filed July 28, 2000, as follows:

     On page 3, first paragraph, line 1 -- a comma is inserted after

“Carhart.”

     On page 4, first full paragraph, line 3 -- the comma after “Carhart”

is deleted.

                                                For the Court - By Direction




                                                /s/ Patricia S. Connor
                                                       Clerk
Filed: July 28, 2000

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHMOND MEDICAL CENTER FOR
WOMEN; WILLIAM G. FITZHUGH, M.D.;
HILLCREST CLINIC; HERBERT C. JONES,
JR., M.D.; PLANNED PARENTHOOD OF
METROPOLITAN WASHINGTON, DC,
INCORPORATED; VIRGINIA LEAGUE FOR
PLANNED PARENTHOOD; PLANNED
PARENTHOODOFTHE BLUE RIDGE,
Plaintiffs-Appellees,

v.

JAMES GILMORE, in his official capacity
as Governor of the State of Virginia;
DAVID M. HICKS, in his official
capacity as Commonwealth Attorney
for the City of Richmond; DONALD S.
                                             No. 98-1930(L)
CALDWELL, in his official capacity as
Commonwealth Attorney for the
County of Roanoke; HOWARD GWYNN,
in his official capacity as
Commonwealth Attorney for the city
of Newport News; CHARLES D.
GRIFFITH, JR., in his official capacity as
Commonwealth Attorney for the City
of Norfolk; ROBERT F. HORAN, JR., in
his official capacity as Commonwealth
Attorney for the County of Fairfax;
JAMES L. CAMBLOS, III, in his official
capacity as Commonwealth Attorney
for the County of Albemarle,
Defendants-Appellants.
ORDER

We have considered the motion to dissolve our stay pending appeal
of the order of the district court which enjoined the operation of the
statute involved in this case, and we have considered the response
thereto. We are of opinion the motion is well taken.

It is accordingly ADJUDGED and ORDERED that our said order
of September 14, 1999, staying the order of the district court pending
appeal, shall be, and the same hereby is, vacated.

Judge Widener and Judge Murnaghan concur in this order without
opinion. Judge Luttig concurs in this order and has appended an opin-
ion thereto, which is attached.

          /s/ H. E. Widener, Jr.
          ______________________
            For the Court

(Opinion follows)

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

I understand the Supreme Court to have intended its decision in
Planned Parenthood v. Casey, 505 U.S. 833 (1992), to be a decision
of super-stare decisis with respect to a woman's fundamental right to
choose whether or not to proceed with a pregnancy. See Casey, 505
U.S. at 844-46 ("Liberty finds no refuge in a jurisprudence of doubt.
Yet 19 years after our holding that the Constitution protects a
woman's right to terminate her pregnancy in its early stages, Roe v.
Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L.Ed.2d 147 (1973), that defi-
nition of liberty is still questioned. . . . After considering the funda-
mental constitutional questions resolved by Roe, principles of
institutional integrity, and the rule of stare decisis, we are led to con-
clude this: the essential holding of Roe v. Wade should be retained
and once again reaffirmed."). And I believe this understanding to
have been not merely confirmed, but reinforced, by the Court's recent

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decision in Stenberg v. Carhart, 2000 WL 825889, at *4 (June 28,
2000) ("[T]his Court, in the course of a generation, has determined
and then redetermined that the Constitution offers basic protection to
the woman's right to choose. Roe v. Wade, 410 U.S. 113, 93 S. Ct.
705, 35 L.Ed.2d 147 (1973); Planned Parenthood of Southeastern Pa.
v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992). We
shall not revisit those legal principles.").

Although I so understand (and understood) the Court in Casey, I
believed at the time that I voted to stay the district court's judgment
pending appeal that, essentially for the reasons that were set forth by
Justice Kennedy in dissent in Stenberg v. Carhart, the Supreme Court
would ultimately hold that the Commonwealth's restrictions on
partial-birth abortions did not constitute an undue burden on a
woman's right to choose. At the very least, I believed that the Court
would, given that the plaintiffs before us lodged only a facial chal-
lenge to the state's law, defer to what I regarded as the Common-
wealth's reasonable interpretation of its statute as not extending to
methods of abortion other than the partial-birth procedure. Based
upon what I believed would be the Supreme Court's holding and
likely reasoning on the constitutionality of the partial-birth ban, and
the overlay of deference customarily afforded state statutes in facial
challenges, I believed that the plaintiffs in the case before us lacked
Article III standing to challenge the Commonwealth's statute because
none of them even intended to perform the prohibited partial-birth
procedure. For these reasons, I stayed the district court's original
injunction as a single Circuit Judge and thereafter voted as a panel
member of the court to deny the plaintiffs' motion to lift that stay.

While the district court's opinion and judgment were awaiting
review by this court, the Supreme Court granted certiorari in Stenberg
v. Carhart. We consequently postponed further consideration of this
case pending final resolution of the partial-birth issue by the Court in
Stenberg.

The Supreme Court has now held unequivocally that a statute
worded like the Commonwealth's does not adequately distinguish
between the so-called D&X procedure and the D&E procedure, the
latter of which unquestionably may not be constitutionally banned by
the government in the earlier stages of pregnancy. Moreover, the

                    3
Court has also now unequivocally held that any ban on partial-birth
abortion must include an exception for the health of the mother in
order to be constitutional. The Commonwealth's statute likewise does
not include such an exception for maternal health.

Because, in my view, the Commonwealth's statute is not sustain-
able on either of the grounds on which the Court invalidated the
Nebraska statute at issue in Stenberg v. Carhart -- much less on
both, which it must be -- I vote to lift the stay of the district court's
judgment entered by this court.

In addition to lifting the stay, I would also summarily affirm the
judgment of the district court, not on the reasoning of that court, but
on the reasoning and opinion of the Supreme Court in Stenberg v.
Carhart. It is my judgment, after carefully reviewing the arguments
advanced by the Commonwealth in opposition to Planned Parent-
hood's motion to lift our stay, that the Supreme Court's decision has
not only foreclosed these arguments, but so clearly foreclosed them
as to render further argument in this court unnecessary.

As a court of law, ours is neither to devise ways in which to cir-
cumvent the opinions of the Supreme Court nor to indulge delay in
the full implementation of the Court's opinions. Rather, our responsi-
bility is to follow faithfully its opinions, because that court is, by con-
stitutional design, vested with the ultimate authority to interpret the
Constitution.

In summarily affirming the unconstitutionality of the Common-
wealth's partial-birth ban, I would also deny the plaintiffs' motion
that I be recused from further consideration of this case. The plaintiffs
have argued that they would be denied the due process of law were
I to participate in the decision of the court as I do today, because I
was included on today's panel under our court's local rules by virtue
of having acted as a single Circuit Judge pursuant to Federal Rule of
Appellate Procedure 8 on the Commonwealth's motion for stay of the
district court's original injunction. In my view, in order to conclude
that the plaintiffs' motion were well-taken, I and the court would be
required to accept the view that law is but a product of the personal
preferences of individual judges, and, consequently, that the law is
dependent entirely upon which judge happens to be assigned to a

                      4
given case. We would be required to reject the view that there actu-
ally is law independent of each of us, and that, as individual judges,
we are bound, and bound equally, by that law.

I understand the argument advanced by the plaintiffs, and I even
appreciate the reasons for the currency of this view. But it is not my
view of law. Nor do I understand it to be the view of my colleagues
on this court. And for the judiciary itself to publicly embrace such an
ultimately cynical view of law and of the judicial process would rep-
resent our full succumber to the contemporary efforts by some to
politicize not only the law, but the judiciary as well.

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