A quartet of abortion clinics in Virginia recently filed a lawsuit against the Commonwealth over laws that they say place unconstitutional and medically unnecessary restrictions on the reproductive health services they provide.
The plaintiffs in the lawsuit include the private Falls Church Healthcare Center, A Capital Women’s Health Clinic in Richmond, Virginia League for Planned Parenthood, and the Whole Woman’s Health Alliance, which has a location in Charlottesville.
The lawsuit challenges Virginia statutes related to licensing, hospital settings for second trimester abortions, the medical professionals allowed to provide abortion care, ultrasounds, and the criminalization of abortion, arguing that such restrictions are designed to hinder providers and patients without any proven medical benefits.
“For over four decades, Virginia has enacted layer upon layer of unnecessary and onerous abortion statutes and regulations,” Center for Reproductive Rights president and CEO Nancy Northup said. “These laws are not supported by medical evidence, and many are inconsistent with the standard of care. They serve only to place substantial burdens on and impede the ability of Virginians to access safe, legal and high-quality abortion care.”
The Center for Reproductive Rights, a legal advocacy nonprofit organization, is representing the plaintiffs and filed the lawsuit in the Richmond division of the U.S. District Court for the Eastern District of Virginia with the Planned Parenthood Federation of America and the ACLU of Virginia.
Virginia Health Commissioner M. Norman Oliver, Virginia Department of Health’s Office of Licensure and Certification acting director Robert Payne, Virginia Board of Health Chair Faye Prichard, and Commonwealth’s Attorneys for Arlington County and the City of Falls Church, Albemarle County, Henrico County, the City of Hampton, and the City of Richmond were all named as defendants in the 62-page complaint.
The U.S. Supreme Court legalized abortion in 1973 with the landmark ruling in Roe v. Wade that statues outlawing abortion or otherwise imposed strict state regulations on abortions violated women’s constitutional right to privacy under the First, Fourth, Ninth, and Fourteenth Amendments.
At that point, nearly all states outlawed abortion except in cases where a woman’s life was in danger or instances of rape, incest, and fetal anomalies, but Roe v. Wade determined that such laws were unconstitutional, according to Planned Parenthood.
While abortion is now technically legal across the U.S., many states have implemented laws regulating or limiting patients’ access to abortion care and healthcare providers’ ability to conduct abortions since then.
Despite Roe v. Wade, Virginia Code Section 18.2-71 characterizes the administration of any means to produce an abortion or miscarriage as a Class 4 felony, which carries a potential sentence of imprisonment for two to 10 years and a fine of up to $100,000.
The statute provides for exceptions. Abortion is lawful during the first trimester of a pregnancy if performed by a physician licensed to practice medicine and surgery by the Virginia Board of Medicine and during the second trimester when performed in a hospital licensed by the Virginia Department of Health or operated by the Department of Behavioral Health and Developmental Services.
Both of these regulations have been part of the Code of Virginia since 1975, and they are among the laws being challenged by the Center for Reproductive Rights lawsuit, according to the complaint.
Virginia League for Planned Parenthood medical director Dr. Shanthi Ramesh says restricting second trimester abortions to hospitals has no scientific or medical value and is instead intended to prevent healthcare providers unable to meet the labor-intensive requirements for a hospital license from offering abortion care.
Planned Parenthood’s Virginia and Richmond Health Centers are the only two sites in the state that currently provide second trimester abortions.
“Thanks to community support, we were over time able to convert our Virginia Beach health center into a surgical center to help ensure our patients can access the care they need,” Ramesh said. “But I can tell you the structural building changes were onerous and did nothing to improve the quality of care for my patients.”
The lawsuit plaintiffs argue that advanced practice clinicians, including certified nurse midwives and licensed nurse practitioners, have the training to safely and effectively provide abortions and should therefore be permitted by state law to conduct the procedure.
In addition to the hospital requirement and physician-only law, the lawsuit is challenging a licensing statute amended by the General Assembly in March 2011 to classify facilities that perform five or more first trimester abortions per month as hospitals.
Under the Code of Virginia Section 32.1-127, facilities that perform at least five first trimester abortions on a monthly basis must follow the same health, sanitation, construction, safety, and operational standards as hospitals and nursing homes.
Virginia Administrative Code Chapter 12 lays out extensive requirements for the issuance and maintenance of licensure for abortion facilities, regulating their clinical staff and personnel, recordkeeping, reporting, and other procedures while giving designated Department of Health employees the right to enter the premises at any time for an inspection.
The lawsuit also takes aim at Virginia’s requirement that patients submit to fetal transabdominal ultrasound imaging conducted by a medical professional trained in sonography and supervised by a Commonwealth-licensed physician at least 24 hours prior to undergoing an abortion, or at least two hours earlier if the woman lives at least 100 miles from the facility where their abortion will be performed.
The ultrasound image must “contain the dimensions of the fetus and accurately portray the presence of external members and internal organs of the fetus,” Virginia Code Section 18.2-76 says, though victims of rape or incest are excluded from the ultrasound requirement if they reported the incident to law enforcement authorities.
According to the U.S. Centers for Disease Control, the national fatality rate for legally induced abortions from 2008 to 2013 was 0.62 deaths per 100,000 reported abortions with four abortion-related deaths identified in 2013, the most recent year when the CDC collected data on abortion-related deaths for its Pregnancy Mortality Surveillance System.
By comparison, there were 2,009 pregnancy-related deaths in the U.S. between 2011 and 2013 with significant racial disparities in pregnancy-related mortality. During that period, there were 12.7 deaths per 100,000 live births for white women, 43.5 deaths per 100,000 live births for black women, and 14.4 deaths per 100,000 live births for women of other races.
According to a November 2014 opinion from the American College of Obstetricians and Gynecologists committee on health care for underserved women, abortion is extremely safe in areas where it is legal. The risk of death associated with childbirth is approximately 14 times higher than that with abortion, and serious complications from abortions are rare at all gestational ages.
Given that safety record, the regulations imposed by Virginia are outdated and medically unnecessary, according to the Center for Reproductive Rights complaint.
“As someone who works everyday with those impacted by these restrictions, I can tell you that these burdens are not mere inconveniences,” Falls Church Healthcare Center founder and director Rosemary Codding said. “They are insulting, stigmatizing, and often devastating to our patients who are forced to endure them, devastating economically and devastating emotionally.”
In filing a lawsuit, the Falls Church Healthcare Center and the other plaintiffs are asking the court to declare the statutes they are challenging unconstitutional and to issue an injunction against the Commonwealth from enforcing any of them.
“We have no comment on pending litigation,” Virginia Department of Health communications director Maribeth Brewster said.
The Center for Reproductive Justice’s lawsuit was spurred in part by the Supreme Court’s decision in the Whole Woman’s Health v. Hellerstedt case.
Represented by the Center for Reproductive Rights, the Whole Woman’s Health Alliance and four other Texas clinics sued the state on Apr. 2, 2014 in a challenge to a bill enacted by Texas legislators in 2013.
House Bill 2 required doctors who provide abortion services to have active admitting privileges at a hospital located no further than 30 miles away from their abortion facility, and it required abortion facilities to meet the minimum standards for ambulatory surgical centers under Texas law.
The Supreme Court ruled on June 27, 2016 that the provisions in H.B. 2 violate the U.S. Constitution by placing “a substantial obstacle in the path of women seeking a pre-viability abortion” and resulting in “an undue burden on abortion access,” Justice Stephen Breyer wrote in his opinion for the 5-3 majority.
Virginia had previously enacted its own requirement that all abortions be performed in facilities that meet the standards for an ambulatory surgical center, but it was lifted after the Whole Woman’s Health v. Hellerstedt ruling, as it was all across the country.
A requirement that all procedures done after 14 weeks be conducted in a hospital setting remains in Virginia, however, so that is one of the laws the Center for Reproductive Justice’s new lawsuit is challenging.
“We are using the powerful momentum of the Whole Woman’s Health decision to dismantle laws that undermine the constitutional right to abortion here in the Commonwealth,” Whole Woman’s Health Alliance president Amy Hagstrom Miller said. “In Virginia, the right to abortion exists on paper…but longstanding restrictions have ensured that practice doesn’t quite live up to its promise.”
Since the Whole Woman’s Health v. Hellerstedt ruling, reproductive rights advocates have made efforts to repeal Virginia’s restrictions on abortion through legislation with Del. Jennifer Boysko (D-86th) introducing the Whole Woman’s Health Act in the House of Delegates during each of the past two General Assembly sessions.
The 2018 version of the Whole Woman’s Health Act declared that “a pregnant person has a fundamental right to obtain a lawful abortion and that no statute or regulation shall be construed to prohibit the performance of an abortion prior to viability or if necessary to protect the life or health of the pregnant person.”
The act was left in the House’s courts of justice committee both in 2017 and 2018, though this year it received a vote on Jan. 26 with a subcommittee recommending passing it by indefinitely in a 4-3 vote, according to Virginia’s Legislative Information System.
“Healthcare decisions are best made between a health care provider and their patient,” Boysko said in a statement responding to the abortion providers’ lawsuit. “…It’s time to get these laws off the books and guarantee equitable access to abortion care for every woman in the Commonwealth.”
Virginia House of Delegates Speaker Kirk Cox (R-66th), majority leader Todd Gilbert (R-15th), Republican Caucus Chairman Tim Hugo (R-40th), and Majority Whip Nick Rush (R-7th) called on Virginia Attorney General Mark Herring to defend the Commonwealth’s laws.
“Protecting the right to life is a fundamental obligation of government enshrined in the Declaration of Independence, our nation’s own birth certificate,” the House GOP leaders said in a statement. “To that end, Virginia has commonsense laws to protect mothers and unborn children, including restrictions on late-term abortions, strong informed consent statutes, and reasonable medical regulations.”
The House Republican caucus warned that, if Herring declines to defend Virginia’s abortion laws, Cox will “consider using his authority to hire counsel to defend the law on behalf of the House of Delegates.”
“This is an extensive suit involving multiple state statutes and factual allegations so we’re going to take the necessary time to carefully review it and evaluate appropriate defenses,” said a representative from Attorney General Mark Herring’s office.