"A federal appeals court suspended Virginia's ban on a controversial abortion procedure and signaled yesterday that the law - the only one of its kind to survive earlier court challenges - is unlikely ever to be revived.

The brief order from the U.S. Court of Appeals for the 4th Circuit did not spell out the three-judge panel's reasoning. But one of the members wrote in an accompanying opinion that Virginia's ban on what opponents call 'partial birth' abortion is 'not sustainable' in fight of the U.S. Supreme Court decision last month that invalidated a similar Nebraska statute.

'It is my judgment, after carefully reviewing the arguments advanced by the Commonwealth...that the Supreme Court's decision has not only foreclosed these arguments, but so dearly foreclosed them as to render further argument in this court unnecessary,' Judge J. Michael Luttig wrote.

The language the Virginia law uses to describe the procedure it seeks to ban is too broad, Luttig said in the opinion. The statute bans any abortion that intentionally delivers a living fetus or a substantial portion thereof. That kind of language, the Supreme Court ruled in the Nebraska law, appears to prohibit the most common method of second-trimester abortions in which the fetus is removed in pieces from the uterus.

In addition, Virginia's law has no exception for protecting the woman, as required under the Supreme Court ruling exception for protecting the heath of the woman, as required under the Supreme Court ruling, Luttig wrote.

Luttig, considered one of the 4th Circuit's leading conservatives, is the judge who allowed the Virginia law to go into effect while the court considered a challenge from abortion providers. His opinion dooms the statute, lawyers and advocates on both sides said.

'For Judge Luttig to turn around and say what he said is really remarkable but absolutely right,' said Simon Heller, of the Center for Reproductive Law and Policy, which challenged the law on behalf of Virginia abortion providers.

And Attorney General Mark L. Earley (R) said: 'It is obvious that any hope of banning 'partial birth' abortions in Virginia will require new legislation. We will work with the General Assembly to pass such legislation ... to uphold the dignity and worth of human life and to put an end to this disturbing form of infanticide once and for all.'

Thirty-one states have passed bans on 'partial birth' abortion and 21 were challenged in court before the Supreme Court's decision in the Nebraska case. Virginia's was the only one allowed to go into effect while, the appeals were, pending. The 7th Circuit upheld bans in Wisconsin and Illinois last year, but Supreme Court Justice John Paul Stevens blocked their enforcement. Maryland and the District do not have laws governing the procedure.

Yesterday's 4th Circuit decision comes just two days after the 3rd Circuit struck down New Jersey's 'partial birth' abortion law based on essentially the same reasoning. They are the first federal appeals court to rule on 'partial birth' abortion bans in the wake of the high court decision.

Passed in 1998, Virginia's 'partial birth' abortion ban was challenged by abortion providers even before it went into effect. A federal district judge ruled twice that it was unconstitutional, but in two rulings, Luttig and then this same three-judge panel stayed those decisions, allowing the statute to take hold while the state appealed. Yesterday's order lifts those stays.

'I believed at the time I voted to stay the district court's judgment ... 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,' Luttig wrote yesterday.

David Nova, president and chief executive of Planned Parenthood of the Blue Ridge, said the 4th Circuit made the right decision.

We have argued from the day this legis!ation was introduced that it was unconstitutional, said Nova, one of the plaintiffs in the case. 'We are encouraged that the 4th Circuit has ended this argument in Virginia'" (Brooke A. Masters, The Washington Post, July 29,2000).