Virginia explained: As states tighten restrictions on abortion, federal court pushes Virginia to loosen regulations

Update: After this story was published, the federal judge vacated his decision on Virginia’s physician-only law, saying he wants to hear more evidence during trial. Read more here. 

News of legislatures in Georgia, Alabama and Ohio either considering or passing laws restricting access to abortions have dominated national headlines in recent weeks.

Yet in Virginia, a federal judge took a step in the opposite direction last week when he ruled that Virginia’s physician-only law puts an “undue burden” on patients, opening the door for clinicians like nurse practitioners and physician assistants to perform first-trimester abortions.

The decision was part of a far-reaching lawsuit filed last year by several Virginia clinics that provide abortions against numerous state officials — from Health Commissioner Norman Oliver to a few commonwealth’s attorneys — who are responsible for enforcing the abortion regulations and licensing requirements that the suit is challenging.

The judge — Henry E. Hudson with the U.S. District Court for the Eastern District of Virginia, who was nominated to his position by George W. Bush — hasn’t yet issued a final decision on several other regulations that the advocates are challenging. Those, which include rules about patients receiving ultrasounds and second-trimester abortions being performed in hospitals, will be heard next week.

“The lawsuit really targets laws and regulations that are designed to make abortion different than other medical procedures and really don’t provide any medical benefit,” said Dr. Shanthi Ramesh, medical director with the Virginia League for Planned Parenthood, one of the plaintiffs in the case.

The case continues the momentum started by the Whole Woman’s Health vs. Hellerstedt Supreme Court decision, which concluded that some regulations pose an unnecessary burden on patients seeking abortion care.

It’s one of several lawsuits nationwide pushing for abortion accessibility, even as some states are simultaneously enacting anti-abortion policies that try to force the issue in the other direction, hoping a conservative-leaning U.S. Supreme Court will tighten restrictions on the medical procedure.

Some of the laws and regulations that the clinics are challenging have, in some cases, existed for over four decades — long before the pro-abortion attorney general charged with defending the state came into office.

While Attorney General Mark Herring’s office has played a role in the suit, including calling for its dismissal, the state’s defense is being handled by lawyers from the law firm Hirschler Fleischer, who were brought in as outside counsel.

Whole Woman’s Health case

The Whole Woman’s Health Supreme Court case has already made an impact on Virginia. The state’s Board of Health preemptively altered some of its regulations to align with the decision in 2016, rolling back some rules that required facilities providing five or more abortions a month to meet hospital-like building standards.

Yet in the lawsuit, the plaintiffs argue that the Board of Health did not go far enough. While the board reversed “some of the most egregious parts of the regulations,” the complaint states, the underlying law mandating what the abortion clinics call the “licensing scheme” remains.

“There’s still this underlying politically-motivated law that says the facilities providing five or more first-trimester abortions in a single month must be regulated as hospitals,” said Anna Scholl, executive director of Progress Virginia.

Such laws and regulations are common nationwide, said Lois Shepherd, a University of Virginia School of Law professor. They’ve been cropping up ever since the Roe vs. Wade decision in 1973.

“There are hundreds of these kinds of laws across the country of different kinds, and they make it harder for clinics to stay open,” Shepherd said. “It chips away at access, it causes delays, causes it to be more expensive, causes women to travel further. So Whole Woman’s Health was a hugely important case because it said: The courts are going to take that seriously.”

Many of the regulations that the Virginia clinics are challenging have been on the books for decades. The physician-only rule dates back to 1975, as does the rule that second-trimester abortions be performed in a hospital, which the plaintiffs are also challenging.

They’re also hoping Hudson knocks down requirements that patients must make two trips to an abortion facility: one to get an ultrasound and the second to receive the actual procedure. The lawsuit claims the two-trip law forces patients “to jump through needless hoops, without any corresponding benefit.”

The defense 

Attorney General Mark Herring argued on the side of Whole Woman’s Health, joining an amicus brief that said the regulations pose an “undue burden” on women seeking abortion care.

And in his office’s motion to dismiss the Virginia lawsuit, Deputy Solicitor General Matthew McGuire acknowledged that the Supreme Court “has repeatedly recognized and reaffirmed a woman’s constitutional right to obtain an abortion,” and that the “plaintiffs make powerful arguments” about some of the regulations.

“But a federal courtroom,” the motion continues, “is not the proper venue for debating the wisdom of these policies.”

Herring’s office declined to comment for this story, and lawyers with Hirschler Fleischer, the law firm serving as outside counsel, did not return requests for comment.

There are moments in the case when even the defendants seem to help the plaintiffs’ case. In his decision, Hudson references Virginia Health Commissioner Norman Oliver’s testimony.

Oliver, who was appointed to his role by Democratic Gov. Ralph Northam, said he thinks the minimum standards for medical facilities that the plaintiffs are challenging “restricts access to abortion care… I can’t tell you how detrimental it is, but I don’t feel that it’s in the interest of women.”

The Virginia Department of Health declined to comment.

Anti-abortion groups see a lackluster legal effort from Herring.

“When Virginia’s laws don’t have adequate defense because our Attorney General Mark Herring is an abortion enthusiast, long-standing, good public policy gets overturned,” said Victoria Cobb, president of The Family Foundation.

Tarina Keene, executive director of NARAL Pro-Choice Virginia, a policy and advocacy group, says Herring is “doing his job, and the advocates are doing ours.”

Scholl, executive director of Progress Virginia, stressed that the laws being challenged predate Virginia’s current administration, which “just happens to be who is in office when the suit was filed.”

“The attorney general has always been a staunch advocate for reproductive rights and health access for people in Virginia,” Scholl said. “It is also his role in that office to defend the state in suits such as these.”

Non-physicians performing abortions

For most clinics that provide abortions, nurse practitioners are there every day as full-time staff. Generally, Keene explained, doctors come in a few times a week to perform abortions because of Virginia’s law.

According to the Guttmacher Institute, a research and policy organization aimed at advancing sexual and reproductive health and rights, 34 states require licensed physicians to provide nonsurgical, medication abortions.

Hudson’s decision, Keene said, “opens the door to increasing that access to a lot of women around the state because nurse practitioners and physician’s assistants will now be able to provide that care, and that will also increase access to abortion and it will lower costs to patients.”

Ramesh, the medical director of the Virginia League for Planned Parenthood, said the organization’s three clinics — one in Richmond and two in Hampton Roads — are usually staffed by nurse practitioners already.

“With this ruling, it means a patient could get an abortion when it’s most convenient for them,” Ramesh said.