Seeking more information, federal judge backtracks on decision allowing abortions without a physician

Virginia Mercury

Just a little over a week after deciding that non-physicians such as nurse practitioners and physician assistants should be able to provide first-trimester abortions, a federal judge on Tuesday vacated his order, saying he instead wants to hear more evidence during an upcoming trial.

The case, filed by several abortion clinics against numerous state officials responsible for enforcing regulations around abortions, is due to go to trial on Monday. But Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia had already issued a judgment last week in which he agreed with the plaintiffs that non-physician clinicians should be allowed to perform first-trimester abortions.

With his decision to vacate that judgment, though, the legitimacy of Virginia’s physician-only law will now be decided at trial, alongside other regulations like the state’s rules on abortion patients receiving ultrasounds and requiring second-trimester abortions to be performed in hospitals.

Plaintiffs argue that several Virginia regulations present an “undue burden” on women seeking abortion care, and should be overturned. Though at first agreeing with them when it comes to first-trimester abortions, Hudson wrote on Tuesday that whether or not the physician-only law truly “presents an undue burden to Virginia women who seek an abortion is a material fact that is genuinely in dispute.

“The court is of the opinion that summary judgment was improvidently awarded,” he added.

“There is overwhelming evidence that medical professionals other than physicians can safely and effectively provide abortion care,” Jenny Ma, an attorney with the Center for Reproductive Rights, which is representing the defendants, said in an emailed statement. “We will be presenting this evidence at trial next week.”

Kevin Walsh, a University of Richmond School of Law professor, said it is unusual for a judge to vacate his decision “but I wouldn’t read too much into it.

“All he’s saying is: I want a fully developed factual record before I make a final determination,” Walsh said. “It’s notable in one sense that he granted summary judgment and then vacated it, but, in a case like this where you’re going to trial anyhow, it kind of makes sense that he wouldn’t want the facts as presented at trial to be limited.”