Judge upholds Virginia’s mandatory ultrasound, waiting period for abortions

(Ned Oliver/ Virginia Mercury)

A U.S. District Court judge issued a ruling Monday upholding Virginia laws mandating an ultrasound and 24-hour waiting period prior to receiving an abortion, but striking down portions of a law mandating hospital-style building standards in clinics.

“The Court recognizes that the waiting period following the ultrasound adds a logistical complexity to an existing myriad of hardships faced by those with limited resources and support networks,” wrote U.S. District Judge Henry E. Hudson. But he said he wasn’t convinced they constituted “a substantial obstacle preventing women’s access to abortion in Virginia.”

Hudson also upheld the state’s physician-only requirement, ruling that lawmakers have the authority to legislate which medical providers can perform the procedure. Abortion providers had testified that if nurse practitioners were allowed to conduct the procedure, they would be able to offer it in more clinics on more days of the week.

A group of abortion providers — Falls Church Healthcare Center, Whole Woman’s Health Alliance, the Virginia League for Planned Parenthood — filed the lawsuit challenging the laws in June 2018, arguing they impeded access to abortion and had made it difficult for clinics to stay open. Hudson heard argument during an eight-day trial in May.

It is not clear what immediate impact his decision addressing hospital-style building codes might have on how abortions are provided in the state. The Board of Health has issued waivers exempting all existing abortion providers in the state from the requirements.

In his mixed ruling, he wrote that they served “no valid state interest” in the case of first trimester abortions, but are valid in the case of second trimester abortions, citing “evidence of progressively increasing risks of complications.” He also struck down a requirement that all second trimester abortions be performed at a licensed outpatient hospital, distinguishing between medical and surgical abortions — a step state regulators are currently considering.

“This decision opens the door to expanding abortion access  in Virginia, but it also shows how much work still needs to be done,” said Jenny Ma, senior staff attorney at the Center for Reproductive Rights, which represented the plaintiffs in the case. “We put forth powerful and overwhelming evidence showing how these laws, individually and together, work to obstruct abortion access, but that was largely ignored by the court. Now, many Virginians will continue to unnecessarily face serious obstacles to abortion access under these burdensome laws under the guide of protecting patient health, which in reality, only work to decimate access to care.”

Abortion opponents framed the ruling as a win. “Once again the abortion industry failed in their zealous attempt to use the courts to do their bidding,” Virginia Family Foundation President Victoria Cobb told the Richmond Times-Dispatch. “We’re pleased Judge Hudson confirmed the legality of Virginia’s informed consent laws including the law that allows women the opportunity to see their ultrasound prior to an abortion if they so choose.”

In weighing the waiting period and ultra-sound requirement, Hudson noted the existence of 27 free ultrasound providers around the state limits the additional expense and travel distance necessitated under the law.

The plaintiffs had argued that those providers are almost entirely crisis pregnancy centers, which generally oppose abortion, but Hudson wrote that no testimony suggested to him “that a woman seeking to satisfy (the ultrasound requirement) cannot obtain the ultrasound from a free provider and decline additional information.”

He wrote that, accounting for the centers, a hypothetical 87-mile round trip from Mount Jackson to Charlottesville would be decreased to roughly 25 miles taking into account the services provided by the crisis pregnancy center there.

Hudson also wrote that testimony that data showing decline in abortions in Virginia compared to the national rate “is too tenuous to enable the court to determine with reasonable accuracy the extent to which the Virginia rate was impacted by the ultrasound requirement.”