Judge issues mixed ruling in abortion law challenge

By Denise Lavoie
AP Legal Affairs Writer

RICHMOND, Va. (AP) — A federal judge on Monday upheld a Virginia law requiring women to undergo an ultrasound and wait at least 24 hours before having an abortion, as well as the state’s “physician-only law” barring nurse practitioners and physician’s assistants from performing abortions.

The ruling by U.S. District Judge Henry Hudson came in a lawsuit that challenged four Virginia laws that opponents say restrict access to abortion in the state.

Hudson overturned two state laws, including one requiring all second-trimester abortions to be performed at a licensed outpatient hospital and regulations that would have required clinics that provide first-trimester abortions to meet the same facility requirements as general and surgical hospitals.

The lawsuit was one of more than a dozen filed around the country challenging what abortion-rights groups call TRAP laws — Targeted Restrictions on Abortion Providers. A trial in Richmond, the state capital, began in May as the abortion debate exploded nationwide. Several states had passed strict new laws limiting abortions, including Alabama, Mississippi, Georgia, Ohio and Kentucky.

Women’s reproductive rights groups that brought the lawsuit expressed disappointment with the mixed ruling.

“We’re disappointed that our patients did not get their constitutionally-protected right to accessing healthcare without legislative interference, which they are entitled to and they deserve,” said a statement from Rosemary Codding, the founder and director of the Falls Church Healthcare Center.

Amy Hagstrom Miller, president and chief executive officer of Whole Woman’s Health Alliance, said the group is pleased that the court relaxed state restrictions on second-trimester abortion care, but disappointed that the judge “did not see clearly how the other restrictions it left in force are not supported by medical evidence and place undue burdens on families (in) the Commonwealth.”

During the trial, the plaintiffs opted to have a judge decide the case instead of a jury. A lawyer for the women’s health groups argued that the regulations are overly restrictive and put up unnecessary barriers to women seeking abortions. Dr. Mark Nichols, an obstetrician/gynecologist who worked for years as the medical director of a Planned Parenthood chapter in Oregon, testified that the laws being challenged in Virginia add layers of regulation that are not medically necessary.

The state, however, argued that the laws have made abortion clinics safer and have not placed an undue burden on women seeking abortions.

“Inconvenience is not an unconstitutional burden,” said Emily Munro Scott, an attorney representing the state.

In his ruling upholding Virginia’s physician-only law, Hudson cited a long line of U.S. Supreme Court rulings upholding the right of states to determine what medical procedures should be performed by physicians. He said the evidence presented during the trial “has not shown that such a restriction has caused an undue burden on a significant number of women seeking abortion care.”

“Therefore, the Court cannot conclude that the Physician-Only law, as it applies to first trimester abortion procedures, is unconstitutional,” Hudson wrote. “Whether it is wise public policy is an issue for the Virginia General Assembly to address.”

In upholding the state’s “informed consent law,” Hudson said the main challenge from reproductive rights groups was the law’s requirement that a woman receive an ultrasound at least 24 hours before getting an abortion. The groups referred to the requirement as the “two-trip mandatory delay law” because it requires women to make two trips to a clinic, one for the ultrasound and a second for the abortion procedure.

Hudson, while acknowledging that the law “poses additional burdens, particularly with respect to poor and low-income individuals,” said the evidence “is insufficient for the Court to conclude that it amounts to a substantial obstacle to abortion access.”