Health Law Daily Mixed ruling delivered in challenge to Virginia’s abortion laws
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Friday, October 4, 2019

Mixed ruling delivered in challenge to Virginia’s abortion laws

By Wendy Biddle, J.D.

Two parts of Virginia’s abortion laws were struck down as unconstitutional but the court upheld other challenged abortion regulations.

Virginia’s law requiring that non-surgical second-trimester abortions be performed only in a hospital is unconstitutional and requiring clinics that perform first trimester abortions to meet the same facility requirements as hospitals were struck down by the district court in Richmond, finding that those requirements placed an undue burden on women seeking abortion. However, the court upheld regulations that require that only a physician perform abortions, an informed consent requirement, mandatory ultrasounds and waiting period, and inspection requirements for abortion clinics, holding that the providers failed to show that the regulations were overly burdensome (Falls Church Medical Center, LLC v. Oliver, September 30, 2019, Hudson, H.).

Three health care providers and one physician brought suit challenging the constitutionality of several Virginia statutes and regulations that govern abortion care. The providers argued that the statutes and regulations place an undue burden on women who have elected to have an abortion.

Licensing statute, regulations and hospital requirement. A Virginia statute, Va. Code Ann. 32.1-127(B), classifies any facility that performs five or more abortions per month as a hospital which triggers additional regulatory requirements. The providers challenged that statute arguing that the Facilities Guidelines Institute (FGI Guidelines) is "onerous" and had no legitimate medical basis. At trial a number of administrators of abortion clinics testified that the cost of compliance with the FGI Guidelines would be significant. The court, citing to the Hellerstedt Supreme Court case, found that the FGI Guidelines serve no valid state interest in first trimester abortions procedures would violate Due Process if they were enforced due to the rigid requirements. But the court did find that the increased risk of surgical second trimester procedures precludes the same finding, therefore the court limited the remedy to invalidating the application of the FGI Guidelines to facilities providing first trimester abortions.

Regarding the requirement that second trimester abortions be performed in licensed hospitals, the court concluded that the requirement is unduly burdensome and violates the Due Process Clause because it applies to both surgical and non-surgical procedures. It is not medically necessary for non-surgical abortions to be performed in licensed hospitals, and doing so would increase the cost and availability. The court enjoined the enforcement of the statute as it pertains to non-surgical second trimester procedures.

Physician-only law. Another Virginia statute requires that only licensed physicians perform abortions which prevents nurse practitioners and physician's assistants from performing the procedures. The providers argued that especially during the first trimester, when medication abortions are prescribed, a licensed physician was unnecessary and that requirement would decrease access and increase wait times. The court, looking at the breadth of constitutional law, concluded that states have been given wide latitude to decide what functions may be performed solely by licensed physicians. The court therefore held that the requirement that abortions only be performed by licensed physicians was constitutional. The court further held that due to the increased risk involved in second-trimester procedures, the requirement is not unduly burdensome or imprudent when weighed against the safety concerns by the state.

Informed consent statute. The providers also challenged the constitutionality of the informed consent requirement, which requires both written consent after certain information is provided the patient, and requires an ultrasound be performed at least 24 hours prior to the procedures. The providers allege that this requirement has a practical effect of causing a woman to make two trips in order to obtain an abortion, which adds both financial and logistical costs to the procedure for travel.

Citing Casey, the court was not persuaded by the evidence that the information provided imposed an undue burden and supplying such written materials is well within the state’s right to regulation abortion procedures. The court also noted in regard to the ultrasound requirement, that the ultrasound is not required to be performed by the same facility that performs the abortion, and there are many free ultrasound options throughout the Commonwealth of Virginia. Factoring in that option as well as out of state providers that could be closer than in-state, the court concluded that there was not enough evidence to show that the ultrasound requirement poses an undue delay or a substantial obstacle. Further the court concluded that the state has a significant interest in "potential life" and a 24-hour waiting period, even though it could add a logistical complexity to the procedure, the court found the evidence did not show a substantial obstacle that would prevent access.

Fourth Amendment challenge to facilities inspection requirement. Lastly, the providers challenged the statute that required Virginia Department of Health to perform unannounced inspections on abortions biennially at a minimum. The providers argued that if the person in charge of the facility refuses entry to the inspectors, the facility's license could be immediately revoked or suspended. This therefore makes the consent to inspect involuntary, spurring a Fourth Amendment violation.

The court was unpersuaded by the providers’ argument. There was no evidence presented that showed the inspectors coerced or abused their authority to gain access to a facility. Further, abortion providers are note the only businesses regularly inspected by the health department; many other types of facilities are inspected. Obtaining and maintaining a license is predicated on adhering the health department regulations. The court held that the providers failed to meet their burden of showing that the inspections were involuntary.

The case is No. 3:18-cv-00428-HEH.

Attorneys: Daniel Sean Trainor (O'Melveny & Myers LLP) for Falls Church Medical Center, LLC d/b/a Falls Church Healthcare Center and Whole Woman's Health Alliance. Toby Jay Heytens, Office of the Attorney General, for M. Norman Oliver.

Companies: Falls Church Medical Center, LLC d/b/a Falls Church Healthcare Center; Whole Woman's Health Alliance

MainStory: TopStory CaseDecisions HealthReformNews VirginiaNews

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