The U.S. Court of Appeals for the 4th Circuit ruled this week that Virginia’s Partial Birth Infanticide Act of 2003 is “unconstitutional” because in some areas it exceeds the federal ban upheld by the U.S. Supreme Court last April. The three-judge panel in Richmond voted 2-1 against the ban, saying it “imposes an undue burden upon a woman’s right to choose a previability second trimester abortion.” (I am still trying to decipher the meaning of the word “previability.”) The federal ban on partial-birth abortion—the procedure during which an infant is partially delivered when the doctor crushes its skull—does not contain an exception for the “health of the woman,” but was deemed a constitutional restriction on the grisly practice by the U.S. Supreme Court in a 5-4 decision. The Virginia ban, likewise, does not contain the vague exception.

The quibble, however, comes from a perceived ambiguity in the Virginia law that might subject a doctor to prosecution if an “accidental” intact dilation and extraction occurred during a standard procedure. In other words, doctors are protected if the baby is dismembered inside the womb and then removed, but if the baby is partially born before being dismembered and removed, and it’s “accidental,” the doctor could still be prosecuted because the Virginia law does not specifically protect them. Judge M. Blane Michael, who wrote the majority opinion, found that unacceptable: “A doctor attempting in good faith to comply with the Virginia Act will accidentally violate the Act in a small fraction of cases.” The dissenting judge, Paul Niemeyer, didn’t buy it. He accused the majority of “ignoring explicit language and undertaking its course to find ambiguity in the Virginia Act so as to be able to strike it down.” Nah, activist judges would never do that.