Falls Church Medical Center, LLC et al v. Oliver et al
Filing
195
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 9/30/2019. (jsmi, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
FALLS CHURCH MEDICAL CENTER,
LLC d/b/a FALLS CHURCH
HEAL THCARE CENTER, et al.,
Plaintiffs,
V.
M. NORMAN OLIVER, VIRGINIA
HEALTH COMMISSIONER, et al.,
Defendants.
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Civil Action No. 3: 18cv428-HEH
MEMORANDUM OPINION
(Post-Trial Judgment)
I.
INTRODUCTION
For more than five decades, the Supreme Court has recognized that within the
right to privacy exists a woman's right to make decisions regarding the circumstances
surrounding when and with whom she will bear a child-or whether she chooses to bear
a child at all. See, e.g., Planned Parenthood ofS.E. Pa. v. Casey, SOS U.S. 833 (1992);
Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswoldv.
Connecticut, 381 U.S. 479 (1965). In the landmark decision of Roe v. Wade, the
Supreme Court established that women have a "fundamental right grounded in the
Fourteenth Amendment to end a pregnancy by aborting the life of the fetus." Greenville
Women's Clinic v. Bryant, 222 F.3d 157, 165 (4th Cir. 2000) (citing Roe, 410 U.S. at
153-56). That right "involv[es] the most intimate and personal choices a person may
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make in a lifetime,'' choices that are central to the individual autonomy and liberty
protected by the Fourteenth Amendment. Casey, 505 U.S. at 851.
However, the Supreme Court has also recognized that "[a]bortion is a unique act,"
and one that is "fraught with consequences ... for the woman who must live with the
implications of her decision; for the persons who perform and assist in the procedure;
[and] for the spouse, family, and society which must confront the knowledge that these
procedures exist .... " Id. at 852. As a result, the right to choose to have an abortion is
not unfettered. In addition to a woman's personal liberty interest, the state has profound
interests in protecting potential life and protecting the health and safety of women. Id. at
878. The state, therefore, may take measures to further these interests so long as it does
not create a substantial obstacle that unduly burdens a woman's right to choose. Id.
At issue in this case is whether Virginia statutes and regulations unduly burden the
right of Virginia women, under the Fourteenth Amendment, to choose to have an
abortion. This Court is fully cognizant of the unique nature of the abortion right and its
controversial history. Accordingly, the Court acknowledges that "[m]en and women of
good conscience can disagree, and ... some always shall disagree, about the profound
moral and spiritual implications of terminating a pregnancy, even in its earliest stage."
Id. at 850. However, even though some "individuals find abortion offensive to [the] most
basic principles of morality," it is the duty of this Court to neutrally evaluate and
determine whether the challenged Virginia statutes and regulations violate the Fourteenth
Amendment. Id. Thus, as it would with any other matter, this Court will faithfully
interpret and apply the law and not, "mandate [its] own moral code." Id. Within the
2
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boundaries of the law, this Court recognizes that the ultimate tribunal is the conscience of
women contemplating an abortion.
II.
BACKGROUND
A. THE PARTIES
Plaintiffs in this case include Falls Church Medical Center, LLC; Whole Woman's
Health Alliance; Virginia League for Planned Parenthood; and Dr. Jane Doe. 1 Each is a
Virginia health care provider that provides elective abortion care in addition to other
gynecological and family planning services. Collectively, Plaintiffs challenge the
constitutionality of several Virginia statutes and regulations that govern the provision of
abortion care throughout the Commonwealth. They contend that these interrelated
statutes and regulations effectively place a constitutionally prohibited undue burden on
Virginia women who have decided to terminate their pregnancies through abortion. The
named Defendants include almost all of Virginia's regulatory agencies that have
jurisdiction over abortion services, as well as commonwealths' attorneys in jurisdictions
where facilities provide these services. 2
1
Dr. Jane Doe will be referred to as "Dr. Doe" and the other Plaintiffs as "abortion providers."
Where appropriate, the Plaintiffs collectively will simply be referred to as "Plaintiffs."
2
The named Defendants are M. Norman Oliver, Virginia Health Commissioner; Robert Payne,
Acting Director of the Virginia Department of Health's Office of Licensure and Certification;
Faye 0. Prichard, Chairperson of the Virginia Board of Health; Theophani Stamos,
Commonwealth's Attorney for Arlington County and the City of Falls Church; Robert Tracci,
Commonwealth's Attorney for Albermarle County; Anton Bell, Commonwealth's Attorney for
the City of Hampton; Michael N. Herring, Commonwealth's Attorney for the City of Richmond;
and Colin Stolle, Commonwealth's Attorney for the City of Virginia Beach. Each individual
Defendant has been sued in his or her official capacity, as well as their employees, agents, and
successors. They will be collectively referred to as "Defendants."
3
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B. THE CHALLENGED LAWS
In the Amended Complaint filed by Plaintiffs in this case, they charge that
Virginia has adopted an array of unnecessary and discriminatory laws, some
over four decades old, that target the provision of abortion care without any
meaningful improvement to safety or health, or any other benefits-let alone
benefits that outweigh burdens. Instead, these laws serve only to negatively
impact Virginians' access to reproductive healthcare.
(Am. Compl. ,i 65, ECF No. 41.) Plaintiffs maintain that the wide array of restrictive
regulations and statutory provisions governing abortion care in Virginia are a
constitutionally offensive obstacle to a woman's right to seek an abortion.
This Court conducted an eight-day bench trial, at the beginning of which only six
counts remained of Plaintiffs' Amended Complaint. 3 Each of these six counts challenges
an individual component of Virginia's legal framework that collectively governs the
administration of pre-viability first and second trimester abortions throughout the
Commonwealth. Plaintiffs' counts are as follows:
Count I focuses on Va. Code Ann.§ 32.1-127(B)(l) (the "Licensing Statute"),
which classifies any facility "in which five or more first trimester abortions per month are
performed" as a category of "hospital." Va. Code Ann.§ 32.1-127(B)(l). Pursuant to
this classification, the Licensing Statute requires the Virginia Board of Health ("Board of
Health") to establish and promulgate minimum standards for the licensing of facilities.
3 At the
onset of trial, Plaintiffs' remaining Counts included Counts 1-V and Count VIII. In the
Court's Memorandum Opinion issued on September 26, 2018, the Court dismissed the facial
challenges alleged in Counts III and IV. (ECF No. 52.) For the sake of clarity, this Court has
continued to use Plaintiffs' numbering convention from the Amended Complaint.
4
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These regulations encapsulate requirements for "hospitals" across the following
categories:
(i) the construction and maintenance of hospitals . . . to ensure the
environmental protection and the life safety of its patients, employees, and
the public; (ii) the operation, staffing and equipping of hospitals . . . ; (iii)
qualifications and training of staff of hospitals ... except those professionals
licensed or certified by the Department of Health Professions; (iv) conditions
under which a hospital . . . may provide medical and nursing services to
patients in their places of residence; and (v) policies related to infection
prevention, disaster preparedness, and facility security of hospitals ....
Id.
Count II challenges Virginia's "Regulations for Licensure of Abortion
Facilities," 12 Va. Admin. Code§ 5-412, et seq. (hereinafter "VAC") (the
"Licensing Regulations"), which are the direct result of the Licensing Statute.
Plaintiffs also challenge the associated laws that criminalize the violation of state
regulations. 4 The Licensing Regulations contain 37 individual regulations;
Plaintiffs challenge this chapter in its entirety and contend that these 37
regulations collectively impose an undue burden on Virginia women's access to
abortion care.
4
In their Amended Complaint, Plaintiffs collectively refer to three separate sections of the
Virginia Code as the "Criminalization Laws." (Am. Compl. 14f.) These sections include Va.
Code Ann.§§ 18.2-71, 32.l-27(A), and 32.1-136. Section 18.2-71 makes it a Class 4 felony,
absent certain exemptions, for any person to intentionally administer an abortion or destroy an
unborn child. See Va. Code Ann.§ 18.2-71. Section 32.l-27(A) provides criminal penalties for
individuals who violate regulations promulgated by the Virginia Board of Health. See Va. Code
Ann. § 32. l-27(A). In relevant part, § 32.1-136 makes it a Class 6 felony to operate an
unlicensed hospital. See Va. Code Ann.§ 32.1-136.
5
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Count III focuses on what is commonly referred to as Virginia's "Hospital
Requirement," Va. Code Ann. § 18.2-73, and the associated regulations that require all
second trimester abortions be performed in general hospitals or outpatient surgical
hospitals. By providing an exception to Virginia's statute that criminalizes abortions, Va.
Code Ann. § 18.2-71, the Hospital Requirement makes it lawful for a licensed physician
to provide a second trimester abortion so long as the procedure is conducted in a hospital
licensed by the Virginia Department of Health ("VDH"). See Va. Code Ann. § 18.2-73.
Notably, however, by function of the regulations, second trimester abortion procedures
cannot be conducted in abortion facilities despite the fact that those facilities are
classified as a category of"hospital." See Va. Code Ann§ 32.1-127(8)(1); see also 12
VAC § 5-412-230(A) ("Abortions performed in abortion facilities shall be performed
only on patients who are within the first trimester of pregnancy meaning 13 weeks and 6
days after last menstrual period or based on an appropriate clinical estimate by a licensed
health care provider."); 12 VAC § 5-412-40 (stating that general hospitals and outpatient
surgical hospitals are not subject to the Licensing Regulations). Plaintiffs contend that
limiting the lawful provision of second trimester abortions to general hospitals and
outpatient surgical hospitals places an undue burden on Virginia women's access to this
type of abortion care.
Count IV challenges Va. Code Ann. § 18.2-72 (the "Physician-Only law") that
permits only physicians licensed by Virginia's Board of Medicine to perform abortion
procedures in the Commonwealth lawfully. Plaintiffs contend that this law is unduly
burdensome because it limits access to abortion care by precluding other licensed medical
6
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professions, namely Nurse Practitioners, Certified Nurse Midwives, and Physicians
Assistants, from providing abortions during the first trimester and in the early weeks of
the second trimester.
Count V challenges Va. Code Ann. § 18.2-76. Plaintiffs refer to this statute as
Virginia's "Two-Trip Mandatory Delay law" because it requires that a woman receive an
ultrasound at least 24 hours before an abortion if she lives less than 100 miles from the
location where the procedure is performed. Implicitly, this waiting period requires a
woman to make two separate trips before she can obtain an abortion-the first to satisfy
the ultrasound requirement, and the second for the abortion. 5 While there are exceptions
to the mandatory waiting period and the mandatory ultrasound, Plaintiffs contend that, in
the vast majority of cases, the statute creates an undue burden by compelling women to
undertake unnecessary travel that raises the cost of obtaining the abortion and delaying
the actual procedure. Plaintiffs argue that these additional burdens create a substantial
obstacle that the women most impacted by the law cannot overcome.
Finally, in Count VIII of Plaintiffs' Amended Complaint, Plaintiffs challenge 12
VAC § 5-412-90, the regulatory provision that authorizes agents of the VDH to enter
abortion facilities for the purpose of conducting inspections. The regulation states that
"[s]uch entries and inspections shall be made with the permission of the owner or person
in charge, unless an inspection warrant is obtained after denial of entry from an
s A woman need not receive the mandatory ultrasound at the clinic where she will receive the
abortion. Therefore, as Defendants argue, the burden of making an additional trip is mitigated by
a woman's potential ability to receive the ultrasound at a location that is closer to her home
before she makes the trip to the abortion clinic.
7
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appropriate circuit court." 12 VAC § 5-412-90. The regulation further provides that
refusal to allow such entry "shall be sufficient cause for immediate revocation or
suspension of the license." Id. Plaintiffs argue that the threat of immediate suspension of
an abortion facility's license is coercive in its effect and violates Plaintiffs' constitutional
rights under the Fourth Amendment.
III.
STANDARD OF REVIEW
Roe and its progeny have clearly established that a woman's constitutional right
to abort a pre-viability fetus is beyond debate at the district court level. See Whole
Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016); Casey, 505 U.S. at 879.
Accordingly, the standard that this Court must apply in resolving the current matter is the
undue burden standard, which the Supreme Court established in Casey and then restated
in Hellerstedt. In Hel/erstedt, the majority opinion stated as follows:
[T]here "exists" an "undue burden" on a woman's right to decide to have an
abortion, and consequently a provision of law is constitutionally invalid, if
the ''purpose or effect" of the provision "is to place a substantial obstacle in
the path of a woman seeking an abortion before the fetus attains viability."
The plurality [of the Court] added that "[u]nnecessary health regulations that
have the purpose or effect of presenting a substantial obstacle to a woman
seeking an abortion impose an undue burden on that right."
136 S. Ct. at 2300 (quoting Casey, 505 U.S. at 878). The Supreme Court instructed that
district courts must weigh the law's benefits against the burdens it imposes to determine
whether the law constitutes an undue burden. See id. at 2309-10. In reviewing the
benefits and burdens of a challenged law, the scope of a district court's review begins
with "the [subset] of women upon whom the statute operates," because "[t]he proper
8
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focus of constitutional inquiry is the group for whom the law is a restriction, not the
group for whom the law is irrelevant." Casey, 505 U.S. at 894.
This Court also recognizes that, as the Supreme Court stressed in both Hellerstedt
and Casey, the benefits and burdens analysis is both fact and context specific. See
Hellerstedt, 136 S. Ct. at 2306; Casey 505 U.S. at 885. Simply put, "[a]n abortion statute
valid as to one set of facts and external circumstances can be invalid as to another."
Planned Parenthood of In. & Ky., Inc. v. Comm 'r ofIn. Dep 't ofHealth, 896 F.3d 809,
817 (7th Cir. 2018) (citing Hellerstedt, 136 S. Ct. at 2306),petitionfor cert. docketed,
No. 18-10109 (S. Ct. Feb. 4, 2019).
IV.
DISCUSSION
To fully evaluate the benefits and burdens associated with the challenged laws,
and to determine whether they present a substantial obstacle to Virginia women seeking
an abortion, the Court must first review how abortions are provided at various stages of
pregnancy and the relative safety of these procedures. The Court received extensive
evidence on this subject from the parties' expert witnesses over the course of the eightday trial.
A. FIRST TRIMESTER ABORTION PROCEDURES
Plaintiffs' medical experts, Dr. Mark Nichols ("Dr. Nichols") and Dr. Shanthi
Ramesh ("Dr. Ramesh"), both of whom provide abortion care as part of their regular
medical practice, testified regarding the relative safety of various forms of abortions. Dr.
Nichols, a professor at Oregon Health & Science University, is board-certified in
obstetrics and gynecology ("OB/GYN") and also serves on the Planned Parenthood
9
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Federation of America's National Board of Directors. Dr. Ramesh is board-certified in
OB/GYN and serves as the Medical Director of the Virginia League of Planned
Parenthood ("VLPP"). In this capacity, Dr. Ramesh oversees VLPP's three abortion
facilities located in Richmond, Hampton, and Virginia Beach.
Witnesses for the Plaintiffs and Defendants both testified that abortion is a
common procedure, and one woman in four will choose to have an abortion during her
life. (Trial Tr. 11 :22-24; 1272:9-10 (hereinafter "Tr.").) According to Dr. Nichols's
testimony, of these abortions, 90 percent occur during the first trimester of pregnancy,
which begins at conception and ends at approximately 13-14 weeks from the woman's
last menstrual period ("LMP"). 6 (Id. at 12:6-18; 89:5-9.) Defense expert Dr. Elizabeth
Lunsford (Dr. Lunsford") concurred. (Id. at 1304:10-13.) Dr. Lunsford, who is boardcertified in OB/GYN medicine, practices at the Riverside Hospital in Gloucester,
Virginia, sees approximately 60 to 80 patients a week, and performs approximately 100
surgical procedures a year. (Id. at 1206:3-10.)
Two different methods of abortion are available during the first trimester. The
first method is provided by administering a combination of FDA-approved medications,
Mifepristone and Misoprostol. (Id. at 13:5-14:6.) Both medications are prescribed
simultaneously, and then ingested approximately 24- to 48-hours apart. (Id.) The
abortion is completed after the woman takes the second medication. (Id. at 14:2-10.)
6
Unless otherwise stated, it is presumed that any reference to the gestational age of pregnancy is
in terms of weeks measured from a woman's LMP. By regulation, Virginia defines the first
trimester as ending at 13 weeks and 6 days LMP. See 12 VAC § 5-412-230(A).
10
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The pregnancy ends outside of a clinical setting in a manner similar to a miscarriage,
usually while the woman is at home. (Id.) This regimen of medication can be prescribed
up to ten weeks into the pregnancy. (Id. at 13:24-14:1.)
Dr. Ramesh testified that "[m]edication abortion is exceedingly safe.
Complications are very rare," and these complications occur in less than one percent of
patients. (Id. at 234:19-20.) Similarly, Dr. Nichols testified that "[c]omplications ...
occur[] in no more than a fraction of a percent of patients." (Id. at 33: 15-34: 1.)
The second method for providing a first trimester abortion is aspiration. During an
aspiration procedure, a plastic tube is inserted into the uterine cavity and suction is
applied to remove the pregnancy. (Id. at 15:5-12.) Similar to medication abortions,
complications during aspiration procedures are very rare. (Id. at 16:2.) The most serious
complication-uterine perforation7-occurs in less than one percent of women,
approximately one out of every thousand. (Id. at 16:8-10; 34:9-14; 149:6-10.) Dr.
Nichols testified that 99 percent of uterine perforations heal without any additional
medical intervention; however, the remaining 1 percent of complications require
hospitalization and possible surgical intervention. (Id. at 1629:2-12.)
Based upon her practice experience at VLPP, Dr. Ramesh testified generally that
the practice of abortion care is exceedingly safe and that the rate of complications
Virginia women experience is consistent with the national figures. (Id. at 223: 17-224: l.)
7
Uterine perforation is the piercing of the uterine wall. W.B. SAUNDERS COMPANY, DORLAND 's
ed. 1994).
ILLUSTRATED MEDICAL DICTIONARY {28th
11
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Dr. Lunsford testified that she periodically encounters patients who suffer side
effects from medication abortion such as vomiting, diarrhea, and bleeding. (Id. at
1225: 14-17.) She added that while complications such as infections are rare, they do
occasionally occur. (Id. at 1231: 18-24; 1232: 12-15.) With respect to aspiration
abortions, "at more advanced gestational ages there's more risk." (Id. at 1255:15-19.)
She further testified that "as the pregnancy advances, the complications can go up." (Id.
at 1277: 16-17.)
Dr. Mary Catherine Slusher ("Dr. Slusher"), a former member of the Board of
Health, generally concurred. Dr. Slusher, who is also board-certified in OB/GYN, was of
the opinion that because of potential complications, it is beneficial to have physicians
perform abortion procedures. (Id. at 1552:9-17.)
B. SECOND TRIMESTER ABORTION PROCEDURES
As a pregnancy advances with each additional week of gestational age, the risk of
a potential complication during an abortion procedure increases statistically. (Id at 35:125.) However, even with this increased risk, pre-viability abortions conducted during the
second trimester, while not without risk, are fairly safe. (Id.)
Aspiration abortions, which are used in the later weeks of the first trimester, are
also utilized during the second trimester up to 16 weeks. (Id. at 15: 19-20.) After 16
weeks LMP, abortions are provided through a procedure known as Dilation and
Evacuation, commonly referred to as "D&E." (Id. at 16:23-17:15.) During a D&E
procedure, a combination of suction and sterile instruments are used to remove the
pregnancy from the uterine cavity. (Id. at 17:6-7.) Mild or moderate sedation may be
12
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used to manage a patient's pain and anxiety. (Id. at 17:1-18:2.) Dr. Nichols testified that
the risk of uterine perforation during a D&E procedure is also less than 1 percent,
approximately 3 per 1,000. (Id. at 149:6-9.) Based upon her practice experience at
VLPP, Dr. Ramesh confirmed that the rate of complications for second trimester
abortions in Virginia women is on par with national figures. (Id. at 280:23-281:2.)
While the medical experts offered differing assessments on the potential for
complications associated with second trimester procedures, they agreed that the risk
increases with the gestational age of the fetus.
C. BENEFITS AND BURDENS ANALYSIS
1. THE VIRGINIA LICENSING STATUTE, LICENSING REGULATIONS,
AND THE VIRGINIA HOSPITAL REQUIREMENT
The constellation of regulations and requirements comprising the claims in Counts
I, II, and III are challenged individually and collectively. Count I embraces Va. Code
Ann.§ 32.1-127(B)(l), which vests regulatory authority in the Board ofHealth over any
facility performing five or more first trimester abortions per month. 8 It classifies such
facilities as a hospital, triggering the allegedly burdensome regulatory requirements at
issue in the counts that follow. In Plaintiffs' view, the impact of the Hospital
Requirement challenged in Count III is compounded by the regulations at issue in Count
II. 12 VAC § 5-412, et seq. While the statutory scheme permits licensed physicians to
perform first trimester procedures in a licensed setting, the statutes declare the
8
In reviewing the five procedures per month regulatory threshold, the Fourth Circuit concluded
that "drawing the line at those performing five abortions per month is rational. ... [T]his type of
line-drawing is typically a legislative function and is presumed valid." Bryant, 222 F.3d at 174.
13
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performance of a second trimester abortion anywhere except a licensed hospital to be a
class IV felony. See Va. Code Ann. §§ 18.2-71, 73. Plaintiffs maintain that these
"Criminalization Laws, violate [their] patients' rights to liberty as guaranteed by [the Due
Process Clause ofJ the Fourteenth Amendment to the U.S. Constitution because they
impose an undue burden on the fundamental right to choose an abortion prior to
viability." (Am. Campi. ,r 255.)
The epicenter of Plaintiffs' challenge appears to be the so-called "FOi
Guidelines," which are an integral part of the hospital classification under the statutory
scheme. 9 These guidelines were promulgated by the Facilities Guidelines Institute which
is an "independent, not-for-profit organization dedicated to developing guidance for the
planning, design, and construction of hospitals, outpatient facilities, and residential
health, care, and support facilities." FACILITIES GUIDELINES INSTITUTE,
https://www.fgiguidelines.org/about-FGI/. Compliance with the FOi Guidelines on
Design and Construction for Health Care Facilities is mandated by 12 VAC § 5-412-370,
Part VII. Based on the hesitant recommendation of the Board of Health, the FGI
Guidelines were enacted by the Virginia General Assembly as part of the
Commonwealth's licensing and regulations for abortion facilities. 10
9
Although a literal reading of Count II of the Amended Complaint may encompass aspects of
the regulatory regimen other than the FOi Guidelines, the evidence at trial clearly targeted the
Guidelines and only mentioned other provisions in passing.
10
12 VAC § 5-412-370 reads in pertinent part:
Abortion facilities shall comply with state and local codes, zoning, and building
ordinances and the Virginia Uniform Statewide Building Code (13VAC5-63). In
addition, abortion facilities shall comply with Part 1 and Sections 3.1-1 through
14
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Dr. Karen Remley ("Dr. Remley"), a physician specializing in pediatric
emergency care who served as the Virginia Commissioner of Health from 2008 to 2012,
was part of that adoption process. Based on the advice of a panel ofOB/GYN experts, 11
the Board of Health initially rejected the adoption of the FGI Guidelines. In 2013, based
on the advice of the Virginia Attorney General's Office, the Board of Health chose to
incorporate the FGI Guidelines into the statutory scheme regulating abortion clinics. In
Dr. Remley's opinion, however, the resulting regulations were not only unduly
burdensome on abortion providers (Tr. 607:7-13) but also increased the cost of abortion
procedures. (Id. at 615 :7-616 :5.) She testified that she was unaware of any reason to
single out abortion clinics for additional regulatory measures. (Id. at 613:2-614:9.)
Dr. Norman Oliver ("Dr. Oliver"), the current Virginia Health Commissioner and
lead Defendant in this case, testified as a witness for Plaintiffs. Dr. Oliver recounted the
history of the adoption of the FGI Guidelines. Before expressing his viewpoint on the
guidelines, Dr. Oliver, testifying as a practicing physician, indicated that in his opinion,
3.1-8 and Section 3. 7 of Part 3 of the 20 IO Guidelines for Design and Construction
of Health Care Facilities of the Facilities Guidelines Institute, which shall take
precedence over the Virginia Uniform Statewide Building Code pursuant to § 32.1127.001 of the Code of Virginia.
Entities operating as of the effective date of this chapter as identified by the
department through submission of Reports of Induced Termination of Pregnancy
pursuant to 12VACS-550-120 or other means and that are now subject to licensure
may be licensed in their current buildings if such entities submit a plan with the
application for licensure that will bring them into full compliance with this
provision within two years from the date of licensure.
11
The advisory panel was composed of the chairs of the OB/GYN departments of each Virginia
medical school. (Tr. 597:22-598:2.)
15
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there was no medical necessity for treating abortion clinics as hospitals and that the
licensing regulations were unnecessary. (Id. at 869:23-870:2; 874:23-875:16; 867:1723.) In his view, facilities in which five or more abortions are provided per month are
subject to more stringent regulations than other facilities offering comparable medical
services. (Id. at 831:21-884:15.) He added, however, that he was unaware of any
abortion clinic closing as a result of enforcement of the regulations. (Id. at 880:7-10.)
Furthermore, all current abortion facilities have received waivers which require periodic
review. (Id. at 908:8-9.)
According to Dr. Oliver, in 2017, in the wake of the Supreme Court decision in
Hellerstedt, 136 S. Ct. 2292, the Board of Health amended 12 VAC § 5-412 by removing
the FGI Guidelines requirements. The Court in Hellerstedt found the Texas statutory
surgical-center requirement at issue placed an undue burden on women seeking abortion
care. 136 S. Ct. at 2318.
Dr. Oliver testified that in the interim, the Henrico County Circuit Court ruled that
the Board of Health violated the Virginia Administrative Procedures Act in amending the
regulations. (Id at 869: 17-22.) According to Dr. Oliver, when the Henrico Circuit Court
struck down the amended regulations, it had the effect of restoring the FGI Guidelines.
(Id.) Because Dr. Oliver had concerns about the constitutionality of the physical
requirements necessitated by the FGI Guidelines, he solicited an opinion from the
Attorney General's Office 12 as to their enforceability. After review, the Attorney
12
The Virginia Attorney General is also a Defendant in this case.
16
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General's Office advised Dr. Oliver that the guidelines were unconstitutional and should
not be enforced. (Id. at 909:4-18.) Consequently, the FGI Guidelines are not presently
being enforced. As Plaintiffs point out, however, this policy of non-enforcement does not
preclude future administrations from resuming enforcement. 13 Dr. Oliver added that the
Governor proposed amendments during the last session of the Virginia General Assembly
to amend the stringent regulations. (Id. at 866:11-867:2.)
Dr. Oliver indicated that both first and second trimester abortions could safely be
performed on an outpatient basis in a clinical setting since they are not surgical
procedures. (Id. at 867: 17-23.) Dr. Oliver further opined that because aspiration and
medication abortions are not surgery-in that they do not involve an incision into the
body-it is not medically necessary for abortion facilities to meet the requirements of
Section 3.7 of the FGI Guidelines governing facilities that provide surgery. (Id. at 877:215.)
On the other hand, while Dr. Oliver testified that parts of 12 VAC § 5-412 are
unnecessary, others are critical. For example, as to equipment enabling the facility to
respond to medical emergencies such as cardiac arrest, Dr. Oliver elaborated, "I believe
13
"These regulations ... require Surgical Centers to have sterile operating rooms of at least 150
square feet or more, depending on sedation level provided; patient corridors at least five or six
feet wide, depending on location; and similarly specific requirements regarding HV AC systems,
finishes for ceilings, walls, and floors, and recovery room dimensions and layout, among others."
(Am. Compl. ,i 133.) Under Virginia's regulatory regime, VDH has incorporated the FOi
Guidelines into both 12 VAC § 5-410 ("Regulations for the Licensure of Hospitals in Virginia")
and 12 VAC § 5-412 ("Regulations for Licensure of Abortion Facilities"), which Plaintiffs make
apparent. (See Am. Comp1. 1 133 ("These regulations [ 12 V AC § 5-410, et seq.] include ...
requirements for Surgical Centers to comply with specific sections of the FOi Guidelines-the
very same physical plant requirements that the Virginia Board of Health struck from the first
trimester Licensing Regulations (12 VAC § 5-412-370] ....").)
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doctors' offices, hospitals, clinics should have the ability to deal with someone who has
an emergent event, even though emergent events are rare." (Id. at 873:11-14.)
The Defendants called Dr. Slusher, a member of the Board of Health from 2012 to
2015, to provide further context on the adoption of the FGI Guidelines and related
regulations. In 2012, Dr. Slusher voted to exempt existing abortion facilities from
compliance with the FGI regulations. The Board of Health, however, was advised by the
Attorney General's Office that exempting those facilities from FGI regulations "was not
permissible." (Id. at 15 5 8: 16-19.) Consequently, she voted for further review of the
abortion facilities regulations that included the FGI regulations.
In 2013, Dr. Slusher reversed her position and supported a version that included
the regulations. In her view, the 2013 version of the regulations improved the safety and
quality of abortion services in Virginia. (Id. at 1534:16-22.) She described the Board of
Health's adoption of the regulations as a reaction to unsafe practices. (Id. at 1535:5-12.)
As examples, she cited inaccurate or incomplete recordkeeping, cleanliness, and access,
such as staircases too narrow to permit removal of patients on stretchers. (Id. at 1536:1024.) In her opinion, the regulations were needed, and there was no intent on the part of
the Board of Health to shut down clinics or affect access. (Id. at 1538:22-1539:5.)
To explain the legislative history of the eventual adoption of the regulatory
statutes at issue in this case, the defense called Joseph Hilbert ("Mr. Hilbert"), Deputy
Commissioner of Governmental and Regulatory Affairs of the VDH. Mr. Hilbert is the
agency's regulatory coordinator and reports directly to the Virginia Health
Commissioner. In that capacity, he also interacts with the Board of Health and drafts the
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agenda for their meetings. Mr. Hilbert was asked about legislation adopted by the
General Assembly in 2011, specifically Senate Bill 924, which promulgated regulatory
requirements for facilities that performed five or more first trimester abortions per month,
classifying them as a category of hospital.
The Virginia Health Commissioner and the chief deputy participated in drafting
the abortion facility regulations. In crafting their content, the VDH "reviewed
documentation from several organizations, including the National Abortion Federation,
Planned Parenthood, the World Health Organization, the Centers for Disease Control and
Prevention, the Joint Commission on Accreditation of Healthcare Organizations" along
with regulations from other states. (Id. at 1484:13-22.) The Virginia Health
Commissioner also empaneled OB/GYN physicians and the chairs of the OB/GYN
departments for the State's teaching hospitals to provide advice on the proposed
regulations. In addition, VDH consulted and analyzed abortion clinic regulations for 22
other states who had them in place at the time. The panel reviewed "data and information
concerning things such as testing and laboratory services, infection control, quality
improvement, staffing and credentialing, administrative disaster preparedness and
security, facility design, family planning counseling and data reporting." (Id. at 1488:518.) VDH also inquired whether the other states had specific regulations governing
abortion facilities, whether they regulate them as outpatient hospitals, and how the
number of abortion facilities in the state had changed since the time the regulations were
adopted.
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According to Mr. Hilbert, once the proposed regulations were completed, they
were presented to the Board of Health, which approved them. One member of the Board
of Health made a motion to exempt or grandfather all of the then-existing licensed
facilities from the facility design and construction requirements of the regulations. This
amendment was adopted. However, when the proposed amendments were presented to
the Attorney General's Office for review, they declined certification because the
proposed amendments did not comply with the provisions of Va. Code Ann.§ 32.1127.001. This section, according to the Attorney General's Office, required the facility
design and construction guidelines of the Code of Virginia to comport with the guidelines
published by the Facilities Guidelines Institute. Consequently, the Board of Health
adopted revised proposed amendments without the previously agreed upon
grandfathering provision. (Id. at 1498:24-1500:15.)
On cross-examination, Plaintiffs' counsel amplified the history underlying
promulgation of these abortion regulations, which took effect in 2013. Mr. Hilbert
testified that prior to enacting emergency regulations in 2011, which evolved into the
regulations adopted in 2013, the VDH did not license abortion clinics. (Id. at 1504:1618; 1505 :24-1506: 1.) He also indicated that prior to the adoption of those regulations, he
was unaware of any evidence indicating that women's health and safety was at risk in
abortion facilities in Virginia. (Id. at 1506:2-9.) Mr. Hilbert also stated on crossexamination that at the time the proposed regulations containing an exemption for preexisting abortion clinics were under review, the Governor, Attorney General, and Deputy
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Secretary of Health and Human Resources harbored pro-life beliefs and supported
regulations containing the FOi guidelines. (Id. at 1506:10-1509:6.)
Also developed on cross-examination was the fact that, in 2008, the General
Assembly had proposed legislation to regulate abortion facilities that provided 25 or more
procedures per year. Mr. Hilbert acknowledged that Virginia had sufficient and
appropriate safeguards in place at the time to assure the health and safety of women faced
with the decision to terminate a pregnancy. In addition, he agreed that another reason
underlying the Board of Health's decision to exempt existing clinics was its belief that
the legislation would place additional financial burdens on women's health care
providers. Furthermore, between the Board of Health's opposition to regulation in 2008,
and the Board of Health's support of additional regulation in 2011, the VDH had not been
presented with any evidence that women in Virginia were receiving unsafe abortion care.
In fact, between 1977 and 1989, there were only two deaths occurring in Virginia as a
result of abortion procedures. (Id. at 1520:8-12.)
Dr. Ramesh testified that in her opinion, first and second trimester abortion
procedures can be performed in a sterile procedure room without the equipment
necessary to qualify as a surgical hospital or comply with the FOi Guidelines. (Id. at
278:9-25.)
Dr. Nichols saw no demonstrated need or medical benefit to requiring that
abortion procedures, particularly in the early stages of pregnancy, be performed in a
facility qualifying as a hospital under Virginia law. (Id. at 56:9-20; 60:11-17.) In his
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view, this requirement, along with the attendant FGI specifications, not only affects
convenience, but may result in more costs than necessary. (Id. at 62:2-12; 64:4-18.)
A number of operators or administrators of abortion clinics testified that the cost
of compliance with the FGI Guidelines would be significant. Paulette McElwain ("Ms.
McElwain"), CEO for VLPP, estimated that the required renovations would be costly and
place her organization in substantial debt. For example, she testified that the cost of
renovating a recently purchased facility in Richmond to comply with the FGI
requirements was in the vicinity of $3.6 million. (Id. at 366: 19-24.) Furthermore, VLPP
has had to hire a consultant to ensure compliance with the regulations, increasing the
costs of procedures by about $100.00. Ms. McElwain believed that if licensing
regulations were less onerous, her organization would consider opening additional clinics
in the vicinity of Washington, DC and in western portions of Virginia.
Amy Hagstrom-Miller ("Ms. Hagstrom-Miller"), CEO of Whole Woman's Health
Alliance, who operates the only reproductive health care facility in the Blue Ridge
mountains, described compliance with the FGI Guidelines as cost-prohibitive. (Id. at
427:8-19; 431: 12-14.) In her opinion, the regulations do not contribute to the safety of
health outcomes. (Id. at 425:23-25.)
Rosemary Codding ("Ms. Codding"), policy director for Falls Church Healthcare
Center, testified that following the adoption of the licensing statute, her facility felt the
need to engage an architect and legal counsel to ensure compliance. (Id. at 509:15510:23.) Based on the architect's report, Ms. Codding testified that the cost of
compliance would be close to a million dollars and would result in additional costs for
22
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women seeking abortion care. (Id. at 516:2-15.) "For instance, our entrance doorway
was three-fourths of an inch too narrow in relationship to a hospital doorway. It would
have meant that we would have had to take out the door frame and rebuild .... [T]hat
alone would have been in the excess of a $50,000 remodel." (Id. at 516:18-24.) In her
opinion, there was no public health reported need for the licensing and regulatory statutes
in Virginia. (Id. at 508:14-18.) When Ms. Codding opened her facility in Falls Church
in 2002, there were no facility specifications governing physicians' offices providing
abortion care. (Id. at 489:12-15.)
The overwhelming preponderance of the evidence has demonstrated that as a
direct consequence of the FGI regulations, particularly when coupled with the costs
associated with acquiring the necessary Certificate of Public Need (see 12 VAC § 5-22020), abortion providers face a significant monetary burden. These costs in tum are passed
on to women seeking abortion services and particularly affect those of lesser income.
The burdensome effect of the FGI Guidelines is an integral part of Plaintiffs'
claims in Counts I through III. Any women's health clinic performing five or more first
trimester abortions per month must comply with these onerous regulatory requirements.
This Court agrees with the Virginia Health Commissioner and the Virginia Attorney
General that the FGI Guidelines pose a significant burden on the fundamental right of
women to choose an abortion during the early pre-viability stages of pregnancy. The
Supreme Court in Hellerstedt reached a similar conclusion. 136 S. Ct. at 2315, 2318.
Plaintiffs' challenge to the regulatory regimen embraced in Counts I through III is
firmly bolstered by the Supreme Court's decision in Hellerstedt. Similar to the
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immediate case, the Supreme Court in He/lerstedt reviewed newly enacted surgicalcenter requirements governing abortion facilities in the State of Texas. Under the
legislation at issue in that case, abortion facilities were required to meet the minimum
standards for ambulatory surgical centers. Id. at 2314. These requirements, which are
similar to those challenged in this case, included detailed specifications relating to the
size of the nursing staff, building dimensions, and other building requirements. Id. The
architectural requirements specified that
Facilities must include a full surgical suite with an operating room that has
"a clear floor area of at least 240 square feet" in which "[t]he minimum clear
dimension between built-in cabinets, counters, and shelves shall be 14 feet."
... There must be a preoperative patient holding room and a postoperative
recovery suite. The former "shall be provided and arranged in a one-way
traffic pattern so that patients entering from outside the surgical suite can
change, gown, and move directly into the restricted corridor of the surgical
suite," ... and the latter "shall be arranged to provide a one-way traffic
pattern from the restricted surgical corridor to the postoperative recovery
suite, and then to the extended observation rooms or discharge," ....
Id. at 2314-15 (internal citations omitted).
The district court in Hellerstedt concluded that risks in the abortion procedure "are
not appreciably lowered for patients who undergo abortions at ambulatory surgical
centers as compared to non-surgical center facilities." Id. at 2315. On appeal, the
Supreme Court found these findings to be well-supported and concluded that the record
clearly demonstrated that the surgical-center requirement provided no benefit when
complications arose in the context of an abortion procedure. Id. at 2315-18. The Court
further noted that "abortions taking place in an abortion facility are safe-indeed, safer
than numerous procedures that take place outside hospitals ...." Id. at 2315. "[S]ince
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the few instances in which serious complications do arise following an abortion almost
always require hospitalization, not treatment at a surgical center, ... surgical-center
standards will not help in those instances either." Id. at 2316 (internal citation omitted).
The Supreme Court also adopted "the [d]istrict [c]ourt's conclusion that the
surgical-center requirement place[ d] a substantial obstacle in the path of women seeking
an abortion." Id. at 2316. The Court ultimately found the provisions to be
unconstitutional on their face. Id. at 2318. The Court in Hellerstedt went further and
found that
[M]any surgical-center requirements are inappropriate as applied to surgical
abortions. Requiring scrub facilities; maintaining a one-way traffic pattern
through the facility; having ceiling, wall, and floor finishes; separating soiled
utility and sterilization rooms; and regulating air pressure, filtration, and
humidity control can help reduce infection where doctors conduct procedures
that penetrate the skin.
But abortions typically involve either the
administration of medicines or procedures performed through the natural
opening of the birth canal, which is itself not sterile.
Id. at 2315-16.
This Court's hand is guided by the Supreme Court analysis in Hellerstedt, which
invalidated rigid regulatory requirements similar to those presently before the Court. The
FGI Guidelines mandated by 12 VAC § 5-412-370, an integral part of the hospital
classification under the statutory scheme, serve no valid state interest with respect to first
trimester procedures and, if enforced, would violate the Due Process Clause of the
Fourteenth Amendment. However, the evidence of progressively increasing risks of
complications during surgical second trimester procedures precludes this Court from
25
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finding that the addition of safeguards of the FGI Guidelines are unduly burdensome in
that context. See 12 V AC § 5-410, et seq.
This constitutional infirmity does not invalidate Virginia's entire statutory and
regulatory scheme governing abortion procedures. In fashioning an appropriate remedy,
this Court is guided by the wisdom of the Supreme Court in Ayotte v. Planned
Parenthood ofNorthern New England, 546 U.S. 320 (2006). "Generally speaking, when
confronting a constitutional flaw in a statute, we try to limit the solution to the problem.
We prefer ... to enjoin only the unconstitutional applications of a statute ... [and] to
sever its problematic portions while leaving the remainder intact." Ayotte, 546 U.S. at
328-29 (citations omitted). "The normal rule is that partial, rather than facial,
invalidation is the required course." Id at 329 (quotation marks and citations omitted);
see also Toghill v. Clarke, 877 F .3d 547, 552 (4th Cir. 2017). Hueing closely to the
teachings of the Fourth Circuit, this Court will limit the remedy in this case to
invalidating the application of the FGI Guidelines to facilities providing first trimester
abortion procedures and leave the balance of 12 VAC § 5-412-370 in full force and
effect. As previously noted, the evidence revealed that the risk of complications
increases with the progression of gestational development within the second trimester.
This Court is unable to determine, based on the record before it, where within the
continuum of fetal development the safeguards of the stringent FGI Guidelines are
necessary. This public policy issue is best left to the legislative branch of government.
To the extent that Plaintiffs' constitutional challenge encompasses related
hospital-specific regulations governing record keeping, minimum staffing, and
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employment of only physicians licensed in Virginia, these provisions may be
inconvenient, but are not unduly burdensome to women seeking abortion care. Certainly,
the Commonwealth of Virginia has an obligation to ensure that physicians performing
medical procedures meet its standards of competence and ethics. This oversight is done
through licensure.
The second facet of Plaintiffs' challenge to the collective burden imposed by
Counts I through III focuses on the requirement that second trimester abortion procedures
be conducted in hospitals or facilities that the State has licensed as "hospitals." See Va.
Code Ann. § 18.2-73; 12 VAC § 5-412-230. 14 An analysis of this issue requires some
development of the legal landscape. Two cases decided by the Supreme Court on the
same day involving a similar issue reached disparate conclusions. Perhaps the most
noteworthy was Simopoulos v. Virginia, 462 U.S. 506 (1983). The Court in Simopoulos
upheld the constitutionality of a similar version of the same statute at issue in this case,
Va. Code Ann.§ 18.2-73. Simopoulos, 462 U.S. at 512,519. In reaching its conclusion,
the Court in Simopoulos relied heavily on the findings of the American College of
Obstetricians and Gynecologists. That organization concluded that "[a]mbulatory care
facilities providing abortion services should meet the same standards of care as those
recommended for other surgical procedures performed in the physician's office and
outpatient clinic or the free-standing and hospital-based ambulatory setting." Id at 517
14
Title 12 VAC § 5-412-230(A) reads in pertinent part, "[a]bortions performed in abortion
facilities shall be performed only on patients who are within the first trimester of pregnancy
meaning 13 weeks and 6 days after last menstrual period or based on an appropriate clinical
estimate by a licensed health care provider."
27
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(citing AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS (ACOG),
STANDARDS FOR OBSTETRIC-GYNECOLOGIC SERVICES 54 (5th ed. 1982)). In upholding
the constitutionality of§ 18.2-73, the Supreme Court emphasized both the importance of
a state's ability to regulate such procedures and the conformance of the regulations with
prevailing medical standards. Id. at 516-19.
In City ofAkron v. Akron Center for Reproductive Health, Inc., the Court found
Akron's second trimester hospital requirement to be unconstitutional because it prevented
"the performance of abortions in outpatient facilities that are not part of an acute-care,
full-service hospital." 462 U.S. 416, 432 (1983). The Court's analysis in City ofAkron
proved to be prescient in forecasting the evolving undue burden and benefits analysis.
The Court explained that
There can be no doubt that [the ordinance's] second-trimester hospitalization
requirement places a significant obstacle in the path of women seeking an
abortion. A primary burden created by the requirement is additional cost to
the woman [seeking abortion care]. The Court of Appeals noted that there
was testimony that a second-trimester abortion costs more than twice as
much in a hospital as in a clinic.
Id. at 434-35.
The Court further mentioned that increased driving distances could also constitute
an unreasonable burden. Id. at 435 ("[A] second-trimester hospitalization requirement
may force women to travel to find available facilities, resulting in both financial expense
and additional health risk."). The Court observed that it was "apparent that a secondtrimester hospitalization requirement may significantly limit a woman's ability to obtain
an abortion." Id.
28
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The Court in City ofAkron ultimately concluded that based on the evolving
medical science available in 1983, "[r]equirements that all abortions after 12 weeks of
gestation be performed in hospitals increase the expense and inconvenience to the woman
without contributing to the safety of the procedure." Id. at 436 (citation omitted). It
recognized that advances in medical science have provided increasingly safe alternatives
to outdated abortion procedures and, consequently, the same level of regulation may not
be necessary. Id. at 435-39.
It is important to keep in mind that Simopoulos was decided 36 years ago and
abortion procedures have advanced significantly since then. As Dr. Oliver testified, in
his personal view, both first and second trimester abortions can be performed on an
outpatient basis, presumably in a clinical setting. "As a medical doctor, my own personal
view is that there is no medical necessity for treating abortion facilities as hospitals .... I
believe that the procedure is not a surgical one. It's very safe and can be performed in an
outpatient setting." (Tr. 867:17-23; see also id. at 894:16-897:8.) Dr. Oliver further
testified that he "[did not] see a need to require that second trimester abortions be
performed in the hospital." (Id. at 894:22-23.) He explained that he personally believes
that the Hospital Requirement restricts access to abortion care in Virginia-a restriction
that is not beneficial to women's health. (Id. at 896:25-897:8.)
Dr. Nichols testified that the Hospital Requirement was enacted over 40 years ago,
in 1975, when second trimester abortion procedures were largely performed by induction,
a procedure that is "much more involved" and "has to happen in a hospital." (Id. at
18:23-19:2; 68:6-9.) Today, however, the evidence shows that abortion care has
29
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advanced significantly, such that requiring second trimester abortions to be performed in
a hospital setting "just does not make sense." (Id. at 68:4-15.) The record shows that
second trimester abortion procedures are now much safer, faster, and have lower
complication rates.
Because of the substantial medical advances made since the Supreme Court's
decision in Simopoulos, the Hospital Requirement, as applied to non-surgical second
trimester abortion procedures, is no longer medically necessary. See City ofAkron, 462
U.S. at 435-39. There is substantial evidence in the record at hand that the requirement
that second trimester non-surgical abortion procedures be performed in facilities
qualifying as surgical hospitals places a significant burden on women seeking abortion
care in Virginia. There are presently only two facilities that regularly perform second
trimester abortion procedures. (Id at 537:6-23; 818: 18-819:6.) The evidence shows that
the Hospital Requirement causes anxiety, delays, and at times, the inability to undergo an
abortion procedure at all. (Id. at 267:17-21; 288:23-289:1; 818:8-819:6.) Dr. Ramesh
described encountering women seeking an abortion during their first trimester who are
unable to obtain a procedure for several weeks, placing them in their second trimester and
requiring them to travel an additional distance, thereby incurring increased costs. These
were significant considerations in Hellerstedt and City ofAkron. Hellerstedt, 136 S. Ct.
at 2315-18; City ofAkron, 462 U.S. at 435.
The evidence has revealed minimal medical necessity for requiring non-surgical
second trimester abortion procedures to be performed in licensed hospitals. On the other
hand, the burden is significant, particularly with respect to costs and availability.
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Therefore, this Court concludes that the Hospital Requirement is unduly burdensome and
in violation of the Due Process Clause, as it applies to non-surgical second trimester
abortion procedures up to the point of viability. As such, given the effect of the current
statutory and regulatory scheme, enforcement of 12 VAC § 5-412-230(A), the regulation
preventing abortion facilities from providing second trimester abortions, will be enjoined
as to pre-viability, non-surgical second trimester abortion procedures.
2. THE PHYSICIAN-ONLY LAW
Another closely allied element of the regulatory scheme at issue is the so-called
Physician-Only law, sometimes referred to as the exemption to Virginia's felony abortion
statute. This statutory provision, Va. Code Ann. § 18.2-72, exempts licensed physicians
from Virginia's general criminal ban on abortion, codified in Va. Code Ann. § 18 .2-71the obvious effect of which is to preclude non-physicians from conducting such
procedures. Plaintiffs contend that this statutory restriction unjustifiably limits the pool
of abortion providers and, consequently, access to abortion care.
Plaintiffs further maintain, and provided extensive supporting evidence at trial,
that advanced practice clinicians ("APCs"), as well as other similarly trained and licensed
health care providers, are capable of providing medication and aspiration abortions,
which are routine first trimester procedures. Typically, an APC is a registered nurse with
a master's degree and biennially continuing education. (Tr. 167:17-21; 176:4-23.) A
first trimester procedure usually requires prescribing medication, which results in the offsite miscarriage of a non-viable fetus, or a procedure referred to as suction aspiration in
which uterine contents are removed from the cervix by suction. All physician witnesses
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testified that complications during first trimester abortions are rare and when they occur,
can almost, without exception, be treated by a properly trained APC. 15
Dr. Nichols testified that there is no medically recognized benefit to prohibiting
properly trained APCs from performing first trimester abortions. (Id. at 39:13-23.) In
his opinion, they are capable of undertaking medication and aspiration abortion
procedures up to 15 weeks ofLMP. (Id. at 42:7-10; 44:11-12; 45:7-12.) Furthermore,
APCs' availability to perfo~ first trimester procedures would increase access to abortion
care. (Id. at 50:15-51:22; 52:17-53:12.)
Dr. Joanne Spetz ("Dr. Spetz"), a professor of health economics at the University
of California, San Francisco, was presented as an expert in nursing regulations. She
testified that not only are APCs capable of performing first trimester abortion procedures,
but, in Virginia, they currently carry out every procedure incident to a medication
abortion except physically handing the medication to the patient. (Id. at 209:5-210:4.)
Dr. Ramesh went further and concluded that APCs are competent to perform both
medication and aspiration abortions during the first and second trimester, particularly if a
physician is present on the premises. (Id. at 236:8-21.)
Dr. Oliver concurred that the training received by nurse practitioners and
physicians assistants is adequate to perform aspiration and medication abortions. (Id. at
15
In weighing the evidence, the Court acknowledges that a number of the witnesses on each side
are affiliated with organizations which either support or oppose abortion rights, or have firmlyheld personal viewpoints on these issues. As Judge Niemeyer noted in Bryant, "the importance
of the deeply divided societal debate over the morality of abortion and the weight of the interests
implicated by the decision to have an abortion can hardly be overstated." 222 F.3d at 175.
32
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887:16-18.) He added that the scope of practice of APCs was one of the issues to be
reviewed by the Board of Health. (Id. at 887: 19-24.)
Dr. Lunsford agreed that APCs are qualified to perform medication abortion
procedures. She expressed some concern, however, about their ability to deal with
potential complications. (Id. at 13 51 : 16-25; 13 74: 1-13 7 5: 1.) While admitting that
complications are rare, she testified that in her experience, the more advanced the
gestational age, the higher the risk of complication. (Id. at 1255:15-19; 1277:13-17.)
Persuasive evidence that APCs are capable of performing first trimester abortions
without physician oversight is only one consideration in determining the constitutionality
of the Physician-Only law. The required analytical framework requires a reviewing court
to "consider the burdens a law imposes on abortion access together with the benefits
those laws confer." Hellerstedt, 136 S. Ct. at 2309.
In Mazurek v. Armstrong, 520 U.S. 968 (1997), as with the case presently before
the Court, at issue was Montana's law restricting performance of abortions to licensed
physicians. The group of physicians and physicians assistants challenging the physicianonly requirement in that case argued that its purpose was to create a substantial obstacle
to women seeking abortions. Central to the plaintiffs' argument in that case was its
contention, supported by published research, that comparing the complication rates for
first trimester abortions performed by physicians assistants with those for first trimester
abortions performed by physicians found no significant difference. Mazurek, 520 U.S. at
973. In rejecting plaintiffs' petition for preliminary injunctive relief, the Court in
Mazurek stated, "we emphasized that our prior cases 'left no doubt that, to ensure the
33
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safety of the abortion procedure, the States may mandate that only physicians perform
abortions.m Id. at 974-75 (quoting Akron, 462 U.S. at 447).
Since Mazurek, the Supreme Court has not retreated from its steadfast position
that states have broad latitude to determine what type of medical practitioners may
perform abortion procedures absent proof that such restriction would be a substantial
obstacle to a woman's access to abortion services. Applying this standard to the case at
hand, Plaintiffs' evidence has demonstrated convincingly that APCs are capable of safely
performing first trimester abortion procedures, and that the requirement that the
procedure be undertaken by a physician is inconvenient, and perhaps for those living in
more rural areas, a burden. However, this Court is not convinced that it imposes an
undue burden. Representatives from abortion providers testified that most women
seeking first trimester abortion procedures can be seen within a week and the procedure
completed within two weeks. While the availability of physicians is certainly a factor,
equally important is coordinating a procedure with the patient's availability.
Dr. Ramesh testified that if APCs were allowed to perform abortions, it would
increase the availability of staff physicians. (Tr. 241:15-243:13.) She testified that if
someone called one of her clinics and wished to have a first trimester procedure, the
patient's first visit can usually be scheduled "for [her] ultrasound and 24 hour consent
within 72 hours. It's around one to two weeks before we're able to see [her] again for
[her] actual abortion procedure." (Id. at 242: 11-19.) With respect to second trimester
abortion care, on the average patients wait approximately one to two weeks. Some
patients, however, wait as long as three to four weeks between the initial visit and the
34
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abortion procedure. If APCs were allowed to perform first trimester procedures, it would
increase the "availability of appointment times that work with our patient[s'] schedules."
(Id. at 243:14-15.)
Ms. McElwain testified that in the absence of the Physician-Only law, her
facilities, located in Richmond, Virginia Beach, and Hampton, could provide greater
access to medication and surgical abortions. Currently, women at her facilities
have very limited access to physician time. And nurse practitioner schedules
are easier to access. Patients would have access in Richmond seven days a
week, in Virginia Beach six days a week, and Hampton four days a week to
medication abortion or to surgical abortion that they don't have access to
now.
(Id. at 389:6...:..15.) In her facilities, most women seeking an appointment are
accommodated within 72 hours, if possible. At the initial meeting, a staff member
performs an ultrasound and confirms eligibility for first trimester medication procedure.
The staff person also explains what the procedures will entail, reviews the ultrasound
results, and explains any possible complications. The woman does not meet with the
physician until the actual abortion procedure is performed.
Ms. Codding testified that she has no waiting list for abortion appointments at her
Falls Church clinic and most patients are seen within three days. (Id. at 544:25-545:3;
551:3-5.) She is also not aware of any waiting lists at any other Virginia clinics. (Id. at
551 :6-8.) Ms. Codding indicated that she has no difficulty hiring physicians. (Id. at
550:17-22.) If APCs could perform abortion procedures, she believed that she could
expand her practice to include more days of the week and perhaps additional locations.
(Id. at 502: 19-504:7; Pis.' Proposed Findings of Fact, 114, ECF No. 188.) Although her
35
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facility provides abortion care five days a week, each of her four physicians have limited
periods of availability. (Id. at 490: 12-492:6.)
This Court is also aware that travel distance is a significant factor for some women
seeking abortion care. Dr. Caitlyn Myers ("Dr. Myers"), an economics professor at
Middlebury College, testified that 75 percent of women in Virginia of childbearing years
live in a community that lacks an abortion provider. (Id. at 958:24-959:1.) She testified
that when you factor in the availability of abortion providers in other states, the average
travel distance to the nearest first trimester abortion provider is approximately 21.4 miles.
(Id. at 966:2-5.) For women residing in the poorest areas of Virginia, it could be close to
46.9 miles. (Id. at 960:14-16.) With respect to second trimester abortion providers, she
estimated the average distance to be 41.1 miles. (Id. at 976:23-25.)
Dr. Myers summarized her conclusion by noting that she was "certainly not
arguing that [distance] would prevent everybody, or even a substantial fraction of
women, like the majority of women seeking an abortion from obtaining one." (Id. at
969:11-14.) But, in her opinion, it could form a barrier to some women. (Id. at 968:20969:20.)
Dr. Jane Collins ("Dr. Collins"), an expert in gender and poverty studies, agreed
with Dr. Myers's impact assessment on the availability of abortion care appointments to
low-income women as a result of the Physician-Only law. Dr. Collins, who based her
opinion on national poverty data, estimated that 22 percent of the population in Virginia
are below the poverty line (id. at 771:5-17), and 35.9 percent of households headed by
single women are below that threshold. (Id at 772:5-8.) Dr. Collins, however, conceded
36
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that she had not interviewed any women in need of such services in formulating her
opinion. (Id. at 769:4-10.) While it is undoubtedly correct that some women below the
poverty line will seek abortion care, this Court cannot assume, based on a theoretical
paradigm, that the majority of similarly situated women will do so.
Aside from a seamless line of Supreme Court authority upholding the right of
states to determine what medical procedures should be performed by physicians, the
evidence has not shown that such a restriction has caused an undue burden on a
significant number of women seeking abortion care. See June Med. Servs., L.L.C. v. Gee,
905 F.3d 787,815 (5th Cir. 2018),petitionfor cert. docketed, No. 18-1323 (S. Ct.
April 19, 2019). At some abortion clinics, the availability of APCs to actually perform an
abortion procedure would certainly facilitate patient care. (Tr. 451 :5-6.) This would be
particularly true of women approaching the gestational limitation on first trimester
procedures. However, based on the record at hand, the number of women facing that
situation is unquantified. Plaintiffs' evidence consisted primarily of estimates by experts.
While there appears to be a tenable argument that APCs are capable of performing
first trimester abortions less expensively, and even perhaps in a non-hospital setting,
permitting them to do so faces a formidable line of countervailing authority beginning
with the seminal case of Roe v. Wade, 410 U.S. 113. The state "may proscribe any
abortion by a person who is not a physician [as defined by state statute]." Roe, 410 U.S.
at 165. Ten years later in City ofAkron, 462 U.S. 416, the Supreme Court emphasized
that prior case law "left no doubt that, to ensure the safety of the abortion procedure, the
States may mandate that only physicians perform abortions." 462 U.S. at 447. The
37
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Supreme Court revisited this issue in Casey where it reiterated that a physician-only
requirement was constitutionally permissible, and not an undue burden, as long as it is
not "a substantial obstacle to a woman seeking an abortion .... Our cases reflect the fact
that the Constitution gives the States broad latitude to decide that particular functions
may be performed only by licensed professionals, even if an objective assessment might
suggest that those same tasks could be performed by others." 505 U.S. at 884-85 (citing
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955)).
Therefore, the Court cannot conclude that the Physician-Only law, as it applies to
first trimester abortion procedures, is unconstitutional. Whether it is wise public policy is
an issue for the Virginia General Assembly to address.
Considering the Physician-Only law as it specifically impacts abortion procedures
that are conducted in the second trimester, it is readily apparent that second trimester
procedures clearly involve enhanced risks and potential complications. The Seventh
Circuit concluded in Planned Parenthood of Wisconsin, Inc. v. Schimel that second
trimester abortions are 22 to 26 times riskier than first trimester procedures. 806 F.3d
908, 920 (7th Cir. 2015). Physicians are better trained to deal with those complications.
Dr. Nichols testified that serious complications are rarely encountered in early stage
abortion procedures but are more frequently experienced as the pregnancy advances. (Tr.
15:24-16:10; 106:7-108:7; 148:23-149:23.) Dr. Spetz testified that 16 states and the
District of Columbia permit APCs to perform only first trimester procedures. (Id. at
202:24-203:2; 203:12-14.) Dr. Oliver, in arguing that APCs are competent to perform
first trimester abortions, cautioned that second trimester procedures "may require some
38
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additional skill." (Id. at 892:17-25.) Dr. Lunsford concurred. (Id. at 1255:15-19;
1277:13-17.) At this later stage of pregnancy, the abortion procedure frequently involves
a method clinically referred to as D&E or "dismemberment abortion." W. Ala. Women's
Ctr. v. Williamson, 900F.3d1310, 1314 (11th Cir. 2018).
Given the potential risk that can arise in the later stages of second trimester
abortions, limiting such procedures to physicians only is well-justified, even though it
may impose an increased burden on rural residents, especially those who are living at or
near the poverty line. (Tr. 52:23-53:6; 1686:10-18.) However, as the Supreme Court
highlighted in Casey and Hellerstedt, states have a legitimate interest in ensuring that
abortion care, like other medical services, are performed "under circumstances that insure
maximum safety for the patient." Hellerstedt, 136 S. Ct. at 2309 (quoting Roe, 410 U.S.
at 150); Casey, 505 U.S. at 878. The Court in Casey held that "[a]s with any medical
procedure, the State may enact regulations to further the health or safety of a woman
seeking an abortion," as long as the regulations do not constitute an undue burden. 505
U.S. at 878. In carrying out its regulatory oversight, the Virginia Board of Medicine has
a statutory obligation to ensure that medical procedures are administered competently and
under sanitary conditions. See Va. Code Ann.§ 32.1-25. Moreover, the Supreme Court
has afforded states "wide discretion to pass legislation in areas where there is medical and
scientific uncertainty." Gonzales v. Carhart, 550 U.S. 124, 163 (2007); Kansas v.
Hendricks, 521 U.S. 346, 360 n.3 (1997).
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This Court cannot conclude on the present record that the Physician-Only law, as
it applies to second trimester procedures, is either unduly burdensome or improvident
when weighed against the State's responsibility for ensuring safe abortion care.
3. VIRGINIA'S INFORMED CONSENT STATUTE
In Count V, Plaintiffs challenge the constitutionality of Va. Code Ann. § 18.2-76
(entitled "Informed Written Consent Required; Civil Penalty"). Plaintiffs refer to this
statute generally as the "Two-Trip Mandatory Delay law." (See Am. Compl. ,r 4e.) The
statute establishes informed consent requirements that medical providers and patients
must satisfy prior to an abortion procedure. According to the statute, a physician must
"obtain the informed written consent of the pregnant woman'' before performing an
abortion. Va. Code Ann.§ 18.2-76(A). Informed consent is multifaceted under the
statute. The statute requires that certain information be provided, including Statepublished materials that must be offered "in a respectful and understandable manner,
without prejudice and intended to give the woman the opportunity to make an informed
choice[,]" at least 24 hours prior to an abortion. 16 Id. § 18 .2-76(D). Alternatively, the
16
According to § l 8.2-76(D), the basic information for informed consent must include:
1. A full, reasonable and comprehensible medical explanation of the nature,
benefits, and risks of and alternatives to the proposed procedures or protocols to be
followed in her particular case;
2. An instruction that the woman may withdraw her consent at any time prior to the
performance of the procedure;
3. An offer for the woman to speak with the physician who is to perform the
abortion so that he may answer any questions that the woman may have and provide
further information concerning the procedures and protocols;
4. A statement of the probable gestational age of the fetus at the time the abortion
is to be performed and that fetal ultrasound imaging shall be performed prior to the
abortion to confirm the gestational age; and
40
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State-published information may be mailed to the woman 72 hours prior to an abortion.
Id.
While Plaintiffs' constitutional challenge includes the alleged burdens imposed by
the required provision of that information, the core of their challenge pertains to the
statute's requirement that a woman receive an ultrasound from a qualified medical
professional at least 24 hours before the procedure. Id. § 18.2-76(B) (the "ultrasound
requirement"). The stated purpose of the ultrasound is to determine the gestational age of
the pregnancy. Id. The individual performing the ultrasound must verbally offer the
woman an opportunity to see the ultrasound image, receive a copy of the image, and
listen to the fetal heart tones. Id.§ 18.2-76(C). While she need not accept, the woman
must certify in writing that the opportunity was offered and whether she accepted it. Id.
The statute contains a limited number of relevant exceptions. The mandatory 24hour waiting period is reduced to "at least two hours before the abortion," if the woman
lives at least 100 miles from the abortion clinic. Id. § 18.2-76(B). Also, if the woman is
a victim of rape or incest, then she is exempt from the requirement entirely. 17 Id.
5. An offer to review the printed materials [published by the VDH] ....
Id § l 8.2-76(0). The materials published by the VDH, to which the 24-hour rule is applicable,
include information regarding public and private support via agencies and services available to
women who decide to proceed to full term with a pregnancy, descriptions of the probable
anatomical and physiological characteristics of a fetus at varying stages of development,
descriptions of the types of abortion procedures and their risks, and descriptions of the risks of
carrying a pregnancy to full term. Id. § 18.2-76(F). The statute further details what the offer to
review the materials must include, which is a basic summary of the information available. Id
§ l 8.2-76(0)(5).
17
This exemption only applies if the underlying incident was reported to law-enforcement
authorities. See Va. Code Ann. § 18.2-76(B).
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Finally, if the gestational age of the pregnancy cannot be determined, then the woman
must be offered an alternative form of ultrasound imaging, which she may decline. Id
The practical consequence of § 18.2-76 is that the vast majority of women seeking
an abortion in Virginia must make two trips in order to comply with the statute 18-the
first trip satisfies the ultrasound requirement, while the second is for the abortion
procedure. Additional financial and logistical costs are incurred due to this additional
travel. Thus, Plaintiffs' evidence focuses particularly on the burdens these costs place on
poor and low-income women for whom they are of greater significance.
Indeed, substantial evidence presented at trial supports the conclusion that the
majority of Plaintiffs' patients would be considered poor and low-income. Dr. Collins
testified regarding the relationship between poverty and abortion. (Tr. 772:13-23.)
According to Dr. Collins, many experts in her field describe persons who are under 100
percent of the federal poverty level as "poor" and persons who are between 100 percent
and 200 percent as "low-income." 19 (Id. at 770:25-771:2.) Most significantly, based on
a review of U.S. Census Bureau data, Dr. Collins testified that "49 percent of women
who seek abortion are at or below 100 percent of the federal poverty level. An additional
26 percent are between 100 and 200 percent" of the federal poverty level. (Id. at 772:19-
18
Dr. Myers testified that 3 percent of Virginia women live 100 miles or more from the nearest
abortion clinic. (Tr. 999:2-4.)
19
Shortly before trial, the federal poverty level, as established by the United States Department
of Health and Human Services, was $12,140 for an individual, with $4,320 added for each
additional family member in a household. (Id. at 769:22-770: 1.)
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22.) Combining these figures demonstrates that three-quarters of women seeking an
abortion are either poor or low-income relative to the federal poverty level. (Id.)
Although these measures were derived from national data, Dr. Collins opined that these
figures would apply in Virginia. (Id. at 774:4-12.) Dr. Collins's opinion on the
relations~ip between poverty and abortion was reinforced by testimony from Plaintiffs'
clinic operators. 20 (Id. at 774:15-19.)
Turning to the evidence of the alleged burdens occasioned by § 18.2-76, Plaintiffs'
experts testified to the financial and travel burdens imposed by the statute's ultrasound
requirement. To illustrate the financial costs associated with this requirement, Dr.
Collins used Virginia-specific data to model the cost of an additional round trip for a
woman who lives in Mount Jackson, Virginia (Shenandoah County) who must travel 87
miles to an abortion clinic in Charlottesville, Virginia. 21 (Id. at 792: 15-800:3.) She
testified that such a trip would cost $108 based on the costs of gas, childcare, and lost
wages at the state minimum wage-expenses that are commonly associated with
obtaining an abortion. (Id. at 793:20-796:25; 809:1-16.) Dr. Collins's projected
20
Ms. Codding testified that 70 percent of the patients at Falls Church Medical Center face
significant financial challenges. (Id at 484:22-23; 485:18-23.) At Whole Woman's Health
Charlottesville, more than 60 percent of patients are impoverished and qualify for poverty-level
assistance for medical expenses. (Id. at 436:18-437:2.) Finally, Dr. Ramesh testified that the
overwhelming majority ofVLPP patients are below 200 percent of the federal poverty level. (Id.
at 220:16-25.)
21
She also modeled the cost of travel to a second trimester abortion provider. Dr. Collins
modeled the cost of two additional round trip visits to a second trimester clinic in Richmond,
Virginia from Charlottesville, Virginia. Dr. Collins modeled the cost of these additional trips at
approximately $123. (Id at 819:20-8:21:12.)
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expenses are in addition to the cost of the second trip, as well as those associated with the
procedure. (Id. at 793:9-14.) As stated previously, Plaintiffs emphasize that poor and
low-income women are the least able to bear these additional expenses. (Id. at 790:2224.)
Additional logistical burdens cited by Plaintiffs' experts include emotional
frustration experienced by women as a result of the required delay, securing leave from
work and childcare, general access to reliable transportation, and the potential for the
undesired revelation of their intent to obtain an abortion to those in their support network.
This may include partners upon whom they rely or who may engage in domestic
violence. (Id. at 790:8-18; 799:13-20; 805:23-806:4.)
As has already been noted with respect to the burdens imposed by travel distance,
Dr. Myers testified that the average woman of child-bearing age in Virginia lives 25.6
miles from the nearest abortion clinic. (Id. at 960:8-10.) However, the average woman
living in the poorest quartile of Virginia counties must travel roughly 46.9 miles to the
nearest in-state abortion provider. 22 (Id. at 960:14-16.) Dr. Myers further testified that
travel distance to obtain an abortion is directly related to the number of abortions
performed. Based on her studies, as travel distance increases, the number of abortions
obtained decreases. 23 To exemplify this relationship, Dr. Myers testified that an abortion
22
In terms of traveling to an in-state second trimester abortion provider, Dr. Myers testified that
the average woman of child-bearing age in Virginia lives 83.4 miles from a Virginia provider.
(Id. at 973:6-8.) The average woman from the poorest quartile of Virginia counties lives 99
miles from such a provider. (Id. at 973:13-15.)
23
Dr. Myers testified that if a woman's travel distance to the nearest abortion clinic increases
from Oto 25 miles, there is a 10 percent decrease in the number of abortions. (Id. at 943:25-
44
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clinic closed in Blacksburg, Virginia in 2015. (Id at 929:19-20; 933:11-25.) Thereafter,
the travel distance to the nearest abortion provider for residents of Montgomery County
(where Blacksburg is located) increased by 45 miles. (Id. at 1019:14-17.) Dr. Myers
estimated a 14 percent decrease in abortions obtained by residents of Montgomery
County following the closure. (Id at 1019:17-20.)
Plaintiffs, witnesses also testified that delays in obtaining an abortion procedure
are a corollary to the expense and travel burdens imposed by the ultrasound requirement.
Specifically, they contend that while the statute only requires a 24-hour waiting period,
the actual period between the ultrasound and the abortion procedure can extend much
longer.
Plaintiffs, experts testified that numerous factors contribute to the length of these
delays, including the combination of the ultrasound requiremenfs waiting period with
burdens attributed to other laws challenged in this lawsuit. They further testified that
numerous patient-centric reasons play a role, including when a woman realizes that she is
pregnant, as well as patient availability and other logistical restrictions. In some
instances, according to Plaintiffs, delays extend to multiple weeks, pushing the procedure
later into pregnancy, leading some to pursue abortions in other states and others to not
return for an abortion at all.
Plaintiffs further contend that many of their patients do not obtain an abortion
before crossing gestational cutoffs for less intrusive abortion procedures. Dr. Ramesh
944:2.) Dr. Myers further testified that increasing the distance from Oto 50 miles results in an 18
percent decrease in the number of performed abortions. (Id. at 944:4-5.)
45
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sees one patient per week who missed the ten-week cutoff for a medication abortion. (Id.
at 265:1-7; 277:1-10.) She also sees approximately one to two patients per week who
miss the 14-week cutoff for a first trimester abortion. (Id.) Six percent of patients at
Falls Church Medical Center are turned away after an initial appointment because they
cannot schedule a second appointment before the end of the first trimester. (Id. at
535:18-23.) Similarly, 50 percent of patients at Whole Woman's Health elect to have a
medication abortion. (Id. at 443:17-23.) However, of the remaining 50 percent of
patients who have an abortion procedure, half (25 percent) would choose to have a
medication abortion but for missing the ten-week cutoff. (Id.) Thus, according to
Plaintiffs, the ultrasound requirement contributes to patients' failure to meet gestational
cutoffs that would otherwise allow a preferred less-intrusive abortion procedure.
In connection with the delays, Dr. Myers also testified that since 2012, the year the
current form of§ 18.2-76 went into effect, Virginia's declining abortion rate has
outpaced the decline in the national abortion rate. (Id. at 1003:20-1004:2.) She offered
this data as a basis for her opinion that the ultrasound requirement is likely to cause some
women to delay or forego an abortion. (Id. at 922:12-14.)
Finally, Plaintiffs' witnesses testified that there is no medical benefit to the
ultrasound requirement or the additional informed consent information that must be
offered to patients. Dr. Nichols, as well as Dr. Oliver in his personal capacity, testified
that there is no medical benefit to a 24-hour waiting period following an ultrasound. (Id.
at 71 :8-72:21; 898:20-899:5.) Dr. Thomas Cunningham, a bioethicist, further testified
that merely offering state-required information to women assumes that the information
46
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may be material to that person but that it may not be appropriate under certain conditions.
(Id. at 732:21-733:5.)
In response to the burdens described by Plaintiffs, Defendants countered with
evidence of the protection to the health and safety of a woman seeking an abortion
afforded by § 18.2-76. Defendants contend that, by legislating requirements for informed
consent, all women obtain the same information, patients have information to reference
on their own and discuss with doctors or others in their support network, and the
physician has consistent talking points for patients. Multiple factors play into patient
comprehension of an abortion procedure, including anxiety, education level, and potential
complications, among others. The State therefore maintains that its information equips
women from differing backgrounds with adequate information to make their own
informed decision as to whether to have an abortion.
Regarding the ultrasound requirement, Dr. Slusher testified that the primary
benefit of an ultrasound is an accurate determination of the stage of pregnancy, as well as
ensuring the pregnancy is intrauterine and not ectopic. (Id. at 15 51: 8-21.) Offering
patients with newly presented pregnancies the opportunity to view an ultrasound is the
standard practice for initial visits in Dr. Slusher's practice. 24 (Id. at 1551 :3-6.)
Dr. Slusher also emphasized the increased decisional certainty that results from the
24-hour waiting period associated with the ultrasound requirement. She testified that the
24
Similarly, Dr. Nichols and Dr. Ramesh testified that, as of February 2019, Planned Parenthood
Federation of America's standards and guidelines require an ultrasound be performed prior to an
abortion. (Id. at 118:7-9; 304:16-305:8.)
47
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ultrasound requirement provides women the opportunity to receive detailed information
critical to an informed decision. (Id. at 1548:4-1549:4.) According to Dr. Slusher, most
women have not previously undergone an abortion and may not understand exactly what
the procedure entails from a medical or surgical perspective. (Id.) Thus, she testified that
the waiting period allows an opportunity for a woman to ensure the abortion is the path
she desires to take. (Id.)
Likewise, Dr. Lunsford testified that the ultrasound requirement provides a period
of deliberation to ensure the patient wishes to proceed with an abortion. (Id. at 1273 :241274 :5.) She further testified regarding the power dynamics in the doctor-patient
relationship. (Id at 1266: 11-1267:3.) According to Dr. Lunsford, patients may at times
feel pressure during interactions with physicians to make momentary decisions. (Id.)
The waiting period can thus mitigate the pressure by providing patients with an
opportunity to step away, speak with close confidants, and proceed with greater certainty
if they choose to do so. Thus, Defendants argue that decisional certainty is enhanced by
the detailed information provided by an ultrasound and the reflection enabled by the
waiting period.
In addition to those benefits, Defendants assert that the waiting period under
§ 18.2-76 furthers the State's interest in potential life. In Casey, the Supreme Court
summarized the state's right to further that interest as follows:
To promote the State's profound interest in potential life, throughout
pregnancy the State may take measures to ensure that the woman's choice is
informed, and measures designed to advance this interest will not be
invalidated as long as their purpose is to persuade the woman to choose
48
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childbirth over abortion. These measures must not be an undue burden on
the right.
505 U.S. at 878.
In Casey, the Supreme Court addressed elements of Pennsylvania's informed
consent law similar to those currently before this Court. In upholding Pennsylvania's
mandated information that medical providers were required to offer to prospective
abortion patients, the Court declined to adhere to existing precedent and concluded that
[R]equiring that the woman be informed of the availability of information
relating to fetal development and the assistance available should she decide
to carry the pregnancy to full term is a reasonable measure to ensure an
informed choice, one which might cause the woman to choose childbirth over
abortion. This requirement cannot be considered a substantial obstacle to
obtaining an abortion, and, it follows, there is no undue burden.
Id. at 883.
Furthermore, in Casey, the Supreme Court reversed the district court's
determination that Pennsylvania's statutory 24-hour waiting period between obtaining the
information required for informed consent and an abortion procedure was
unconstitutional. Id. at 887. The district court in Casey had determined "that because of
the distances many women must travel to reach an abortion provider, the practical effect
will often be a delay of much more than a day because the waiting period requires that a
woman seeking an abortion make at least two visits to the doctor." Id. at 885-86. The
district court thus found the law unconstitutional on the basis that it was particularly
burdensome for those with the fewest financial resources. Id. at 886.
The Supreme Court acknowledged that the district court's findings were troubling,
but ultimately concluded that they did not amount to an undue burden. Id. at 886-87.
49
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Citing the state's interest in promoting life, the Court again reiterated that "a State is
permitted to enact persuasive measures which favor childbirth over abortion, even if
those measures do not further a health interest." Id. at 886. While the district court in
Casey had found that the law presented a particularized burden, it had not found that it
amounted to a substantial obstacle to obtaining an abortion. Id. at 886-87. The Court
emphasized that the finding in Roe was not a right to abortion on demand, but rather a
right to decide to terminate a pregnancy without undue interference from the state. Id. at
887. Thus, it concluded that Pennsylvania's informed consent requirement did not
impermissibly infringe that right. 25 Id.
As instructed by Hellerstedt, this Court has weighed the proffered benefits and
burdens presented at trial pertaining to the application of§ 18.2-76. This Court finds
that, while Virginia's Informed Consent statute poses additional burdens, particularly
with respect to poor and low-income individuals, Plaintiffs' evidence is insufficient for
the Court to conclude that it amounts to a substantial obstacle to abortion access.
Closely guided by the Supreme Court's reasoning in Casey, this Court is not
persuaded by the evidence that the provision of State-provided information under § 18.276 imposes an undue burden. The supplying of such information as a resource to women
is within the State's authority to regulate abortion procedures, see Casey, 505 U.S. at 883,
and Plaintiffs have not persuaded the Court to the contrary.
25
The Fourth Circuit has previously cited this finding in Casey as its primary example of a state
restriction that poses an "incidental effect on the woman's decision" but does not "reach the core
of the protected liberty." Bryant, 222 F.3d at 167.
50
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Turning to the burdens presented at trial regarding the ultrasound requirement,
Plaintiffs' evidence that additional expenses and travel distances amounts to a substantial
obstacle is undermined by the fact that§ 18.2-76 does not require a woman to receive the
mandatory ultrasound at the same clinic as where the abortion is performed. (Tr. 826:615.) Importantly, there are multiple free ultrasound providers located throughout the
Commonwealth. The VDH website provides a list of 27 such providers. Virginia Free
Ultrasound Providers, VA. DEP'T OF HEALTH,
http://www. vdh. virginia.gov/pregnancy/free-ultrasound-providers/.
While Plaintiffs' experts did not factor these providers into their analyses, doing
so would certainly be significant. For example, Dr. Collins's illustration of an additional
87-mile trip from Mount Jackson, Virginia to Charlottesville, Virginia is decreased to
roughly 25 miles by taking into account the ultrasound provider located in Harrisonburg,
Virginia. While not every rural locality has a free ultrasound provider, there are
numerous options available in the western and southern portions of Virginia, which tend
to be more sparsely populated. The apparent assumption in Plaintiffs' experts' burden
analyses that a woman for whom travel expense and distance are prohibitive would not
utilize free ultrasound services at a fraction of the distance considerably affects the
weight the Court places on their testimony in assessing the ultrasound requirement.
Plaintiffs emphasize that the list of free ultrasound providers consists primarily of
crisis pregnancy centers, which they characterize as organizations that oppose abortion.
However, there is no indication in the record that a woman seeking to satisfy § 18.2-76's
ultrasound requirement cannot obtain the ultrasound from a free provider and decline
51
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additional information. Indeed, the VDH suggests the availability of these services.
While Plaintiffs may prefer to perform a second ultrasound if the first was obtained
elsewhere, the Court is not convinced that this would be more inconvenient than if
§ 18.2-76 excluded the ultrasound requirement's waiting period and Plaintiffs performed
all aspects of an abortion procedure in a single visit. The Court reiterates that free
ultrasound providers serve as an option to mitigate logistical costs for those for whom
they represent a particular burden.
Factoring in out-of-state abortion providers also alleviates the burden of travel
distance. For example, Dr. Myers testified that women living in Lee County, Virginia,
which is the westernmost county in the Commonwealth, must travel 209 miles, or 3 hours
and 39 minutes, to reach their nearest Virginia provider in Roanoke, Virginia. (Tr.
961: 16-21.) Adding in a return trip would result in 418 total miles traveled, requiring
travel times in excess of 7 hours. Importantly, however, this analysis ignores the
availability of an abortion provider in Bristol, Tennessee-a city which straddles the
borders of Virginia and Tennessee and serves as an urban center for sparsely populated
counties in southwest Virginia. Bristol is roughly 60 miles from Lee County with a drive
time of slightly over an hour.
With respect to delays in scheduling abortion procedures, the Court finds that
there are too many contributing factors in the scheduling process to conclude that the
ultrasound requirement causes undue delay or that the waiting period amounts to a
substantial obstacle. As the Court already concluded in its analysis of the Physician-Only
law, Plaintiffs have not demonstrated that this limitation amounts to an undue burden.
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The record shows that Plaintiffs' clinics are able to facilitate patients within a reasonable
time period, which takes into consideration the requirements of§ 18.2-76.
Importantly, gestational demarcations early in pregnancy impact the type rather
than the availability of an abortion procedure. While an unspecified number of patients
may cross gestational cutoffs, the effect of the 24-hour waiting period is too attenuated
based on numerous contributing factors beyond government regulations. As discussed
above, the availability of free ultrasound clinics also mitigates constraints faced by poor
and low-income individuals confronting scheduling conflicts. Given the attenuation of
the effect of the 24-hour waiting period-a period previously upheld by the Supreme
Court and which over half the states require prior to an abortion, with some states
requiring up to a 72-hour waiting period-the Court is unable to conclude that it is an
unreasonable length of time.
Regarding Dr. Myers's testimony on the rate of decline in abortions in Virginia as
compared with the national rate, the underlying data 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. 26 Dr. Myers testified that the Virginia rate of decline was
lower than the national rate in 2011, but reversed in 2012 and 2013, during which the
Virginia rate far exceeded the national rate. (Tr. 1003:3-1004:2; Pls.j Ex. 867.) She
attributes passage of the current form of § 18 .2-76 in 2012 as a major contributor to that
26
The parties stipulated that the number of abortions performed nationwide have declined
between 2009 and 2015 based on available Centers for Disease Control and Prevention data.
(Pretrial Statement, App. A ,i 77, ECF No. 146-1.) They also stipulated that the number of
abortions performed in Virginia has declined since 2009. (Id. ,i 76.)
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change. However, her data also reveals that in 2010, two years prior, the Virginia rate
was considerably higher than the national rate-almost double. In contrast, the Virginia
rate decreased substantially in 2014 along with the national rate and increased as
compared to the national rate in 2015. The impact of the ultrasound requirement amidst
these variations, if any, is highly uncertain.
The comparison of rates is further undermined by discrepancies in data collection.
Dr. Myers calculated the national rate of decline in abortions using data collected by the
Centers for Disease Control and Prevention ("CDC"). On cross-examination, Dr. Myers
acknowledged that states vary substantially with respect to abortion data reported to the
CDC, with some states not providing data at all. (Tr. 1021:5-1022:4.) This raises
additional concerns regarding the accuracy of the represented national rates of decline.
Thus, Plaintiffs have not satisfactorily demonstrated the extent to which the
ultrasound requirement has contributed to the declining rate of abortion in Virginia as
compared with the national average, if at all. Both the Virginia and national rates of
declines in abortions are multifaceted and can be attributed to various causes. (Id. at
634:12-15.) A finding with respect to the impact of the ultrasound requirement on
changes in those rates would be speculative at best based on the current record.
With respect to Defendants' proffered benefits that further the State's interest in
the health and safety of a woman seeking an abortion, it is uncontroverted based on the
record that the ultrasound is the most accurate means by which to determine the stage of
gestation. This was not only the uniform opinion of physicians at trial, but Planned
Parenthood Federation of America requires an ultrasound prior to every abortion. The
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Court is without an adequate basis to conclude that the State's requirement that an
ultrasound be performed prior to an abortion constitutes an undue burden.
Turning to the benefits of decisional certainty that result from the 24-hour waiting
period, "[t]he idea that important decisions will be more informed and deliberate if they
follow some period of reflection does not strike [the Court] as unreasonable, particularly
where the statute directs that important information become part of the background of the
decision." Casey, 505 U.S. at 885. Common sense supports the notion that reflection
upon receipt of detailed information about an abortion procedure bolsters a decision that
is complex in many respects.
However, it is evident that a significant interest advanced by§ 18.2-76's waiting
period is the State's "profound interest in potential life." Id. at 878. The legislation
mandates a 24-hour reflective period within which a woman contemplating an abortion
may consider the information obtained through the informed consent process, including
information from the ultrasound if she so chooses. It is a persuasive measure by the State
to encourage women to choose childbirth rather than abortion, which is a valid basis upon
which to regulate abortion so long as the measure does not amount to a substantial
obstacle to access. Id.
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. However, in consideration of the evidence previously
discussed, the Court is not persuaded by a preponderance of the evidence that§ 18.2-76
amounts to a substantial obstacle preventing women's access to abortion in Virginia. The
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Court underscores that its analysis does not turn simply on the merits of this policy. That
determination is within the purview of the General Assembly. Rather, the Court's
analysis is restricted to whether § 18.2-76 imposes an undue burden in contravention of
the Fourteenth Amendment. This Court concludes that it does not.
4. PLAINTIFFS' FOURTH AMENDMENT CHALLENGE TO THE
INSPECTION OF PLAINTIFFS' FACILITIES
Finally, having addressed each of Plaintiffs' surviving Counts, the Court turns to
Count VIII of the Amended Complaint. Plaintiffs allege that unannounced inspections of
abortion clinics performed by VDH violate the Fourth Amendment. The regulatory
regimen calls for VDH officials to perform unannounced inspections of abortion facilities
at least biennially. See 12 VAC § 5-412-lO0(A). Under this regulation, inspectors are
granted a right of entry to clinic premises, although they are only permitted to enter with
consent or an inspection warrant. See 12 VAC § 5-412-90. 27 Plaintiffs' Fourth
Amendment challenge focuses on the consequence of non-compliance. "If the owner, or
27
The entirety of 12 VAC § 5-412-90 states as follows:
Pursuant to§ 32.1-25 of the Code of Virginia, any duly designated employee of the
Virginia Department of Health shall have the right to enter upon and into the
premises of any licensed abortion facility, or any entity the department has reason
to believe is operated or maintained as an abortion facility without a license, in
order to determine the state of compliance with the provisions of this chapter and
applicable laws. Any such employee shall properly identify himself as an inspector
designated by OLC; the abortion facility may verify the identity of the inspector
prior to his admission. Such entries and inspections shall be made with the
permission of the owner or person in charge, unless an inspection warrant is
obtained after denial of entry from an appropriate circuit court. If the owner, or
person in charge, refuses entry, this shall be sufficient cause for immediate
revocation or suspension of the license. If the entity is unlicensed, the owner or
person in charge shall be subject to penalties and other actions pursuant to § 32.127 of the Code of Virginia.
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person in charge, refuses entry, this shall be sufficient cause for immediate revocation or
suspension of the [abortion facility's] license." Id. According to Plaintiffs, the risk
posed to their license for withholding consent renders their consent to VDH inspections
involuntary, effectively allowing warrantless searches in contravention of the Fourth
Amendment.
The Fourth Amendment provides in relevant part that "[t]he right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...."
U.S. Const. amend. IV. "The Fourth Amendment prohibits unreasonable searches, and
searches conducted without a warrant are per se unreasonable unless a valid exception to
the warrant requirement is applicable." United States v. Lattimore, 87 F.3d 647, 650 (4th
Cir. 1996) (citing Schneckloth v. Bustamante, 412 U.S. 218,219 (1973)). While Fourth
Amendment protections are most frequently litigated in the context of criminal
investigations, they also apply to administrative searches. See See v. City ofSeattle, 387
U.S. 541, 545 (1967). Thus, "[t]his rule 'applies to commercial premises as well as to
homes."' City ofLos Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (quoting Marshall v.
Barlow's, Inc., 436 U.S. 307,312 (1978)).
Consent is a well-established exception to the warrant requirement. Schneckloth,
412 U.S. at 219. Of particular concern in situations where consent is given to
government actors to perform a search is whether the consent was given voluntarily. Id.
at 225-26. As noted, Plaintiffs contend that their consent to VDH inspections is legally
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coerced, since refusal of entry is a legally sufficient cause for revocation or suspension of
their license under 12 VAC § 5-412-90. 28
Determining whether consent is voluntary requires a factual analysis in which the
Court must consider the totality of the circumstances. 29 Id. at 226. Of particular
relevance in the analysis are the characteristics of the party or nature of the enterprise
asserting Fourth Amendment protections, as well as the conditions under which consent
was given. Lattimore, 87 F.3d at 650. Given the nature of the services offered, abortion
providers have a heightened obligation to protect the welfare of their clients. Knowledge
of the ability to refuse is also a relevant consideration. Id.
Based on the record, consent is the basis upon which VDH inspectors have gained
entry to Plaintiffs' facilities. Debra A. Marion ("Ms. Marion"), a Medical Facilities
Inspector within VDH' s Office of Li censure and Certification and a registered nurse,
testified to her process for gaining entry to abortion clinics for inspection. According to
28
The Court notes that while the parties argued this issue in the context of voluntary consent,
another Fourth Amendment exception-the "closely regulated industry" exception-may also be
relevant. That exception provides that certain businesses "'have such a history of government
oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock
of such an enterprise."' Patel, 135 S. Ct. at 2454 (quoting Barlow's, Inc., 436 U.S. at 313). The
handful of federal courts to have analyzed its application to abortion clinics have found it
inapplicable. See Tucson Woman's Clinic v. Eden, 379 F.3d 531,550 (9th Cir. 2004); Margaret
S. v. Edwards, 488 F. Supp. 181, 215-17 (E.D. La. 1980); Akron Ctr.for Reprod. Health v. City
ofAkron, 479 F. Supp. 1172, 1205 (N.D. Ohio 1979), aff'd in part and rev 'din part on other
grounds, 651 F.2d 1198 (6th Cir. 1981), 462 U.S. 416 (1983). In the absence of briefing by the
parties and with concern regarding the impact its application may have on patient privacy, the
Court declines to consider it here.
29
United States Supreme Court and Fourth Circuit guidance regarding whether consent is
"voluntary" under the totality-of-the-circumstances test has come from the criminal investigation
context. The Court is aware of no precedent precluding or altering this approach with respect to
administrative searches.
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Ms. Marion, entry points to most clinics are locked and require a representative from the
clinic to admit the inspectors. (Tr. 1045:10-14.) Upon admittance, inspectors proceed to
the reception area and identify themselves, typically for the second time. (Id. at 1045:1417.) They request to meet with the person in charge in a private area. (Id. at 1045:1820.) In that meeting, they review procedures for the inspection and request pertinent
information from the person in charge, including patient records, 30 before beginning the
inspection. (Id. at 1045:24-1046:15.)
The Court has found no evidence in the record that VDH inspectors have
exercised coercion or made excessive claims of authority in seeking access to clinics for
an inspection. 31 None of the facility operators testified that they felt threatened or
intimidated by the inspectors. To the contrary, Ms. Marion testified that in the event that
a clinic representative declined entry, she would consult with her supervisor before taking
further action. (Id. at 1071: 11-17 .) Notably, the parties agree that there has been no
instance in which Plaintiffs have declined entry to VDH inspectors. (Pretrial Statement,
App. A ,I 92.)
30
The Fourth Circuit has previously upheld review by state medical inspectors of abortion
patient records maintained by the clinic providing abortion services where regulations did not
"require unnecessary disclosure of protected information, in violation of the privacy right
identified in Whalen [v. Roe, 429 U.S. 589, 599-600 (1977)]." Greenville Women's Clinic v.
Comm'r, 317 F.3d 357,371 (4th Cir. 2002).
31
Plaintiffs cite deposition testimony by Mr. Hilbert in which he opines that consent of an
abortion facility is unnecessary for inspectors to enter their premises under 12 VAC § 5-412-90.
(Pls.' Dep. Desigs. and Objs. Defs.' Counter-Desigs. 226, ECF No. 160-1; Hilbert Dep. 394:14395:9.) However, Plaintiffs do not cite a single instance in which VDH officials have made such
a claim of authority to gain entry to their facilities.
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As could be expected, Plaintiffs describe feelings of anxiety among staff members
with respect to inspections and isolated incidents of conflict with inspectors. (Tr.
296:22-297:4; 377:5-15; 565:22-566:2.) However, inspections by individuals of
authority are inherently stressful. The Court has found no evidence that inspectors have
acted unreasonably, abused their authority, or significantly disrupted business operations.
Additionally, Plaintiffs testified not only that they comply with inspections, but they
frequently assist inspectors with the process. For example, Falls Church staff members
underwent special training to facilitate VDH inspections. The record demonstrates that
while Plaintiffs find the inspection process burdensome, as any business would, they have
grown familiar with it and sought to assist in making it as efficient as possible.
In addition to inspecting Plaintiffs' facilities and records, VDH inspectors also
observe patient procedures. Ms. Marion testified that all observations involving patients
require the patient's prior consent. (Id. at 1072:17-18.) She explained that inspectors
generally rely on clinics to initially ask patients whether they would be willing to allow
an inspector to observe their procedure. (Id. at 1047:5-12.) If the patient consents,
inspectors then meet with the patient personally, explain that they are present to observe
the care the patient is receiving, and have the patient sign a consent document. (Id. at
1047:13-23.) Thus, patients are typically afforded multiple opportunities to decline prior
to observation of their procedure by inspectors. There is no evidence before the Court
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that inspectors have observed a patient procedure without first procuring the patient's
consent. 32
Abortion providers are not the only entities regularly inspected by VDH in the
Commonwealth. The types of facilities inspected by VDH are extensive, including
dialysis facilities, ambulatory surgery clinics, psychiatric residential treatment facilities,
Emergency Medical Treatment & Labor Act ("EMTALA") centers, hospitals, mobile xray facilities, outpatient physical therapy facilities, home care organizations, home health
agencies, hospices, and rural health clinics. (Id. at 1041 :22-1042:8; 1082:3-10.)
Inspections of these facilities are similar to inspections of abortion facilities. (Id. at
1050:23-1051 :2.)
The evidence also revealed that inspections of abortion facilities over time have
resulted in decreases in the number of citations by inspectors. During the span of 2012 to
2014, citations in the category of Organization & Management decreased from 5 citations
per facility to 1.8, Patient Care citations decreased from 3.2 per facility to 1.6 per facility,
and Infection Prevention citations decreased from 2.5 per facility to 0.8 per facility.
(Defs.' Adm. Exs. J-1 at 3.) The record further shows that the closure of a substandard
abortion facility occurred following suspension of that facility's license due to numerous
violations revealed by VDH inspections. (Tr. 1054:23-1066:17.) While the nature of
32
Ms. Hagstrom-Miller testified that on one occasion a VDH inspector did not obtain written
consent from a patient; however, she testified that the inspector still spoke with the patient
beforehand. (Id at 471 :9-24.)
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specific citations may differ, the record reflects that inspections have contributed to
increased safety for patients at abortion facilities.
The heads of each Plaintiff facility testified that they only provide consent to VDH
inspections because they believe they will lose their license if they do not. (Id at
376:10-19; 431:2-10; 527:10-528:1.) The record contains no evidence that a facility's
license has been revoked or suspended as a result of declining entry to VDH inspectors.
The regulation does not provide that revocation or suspension is automatic or even
imminent if a clinic declines entry and asks inspectors to instead obtain a warrant.
Rather, it states that refusal of entry "shall be sufficient cause" for revocation or
suspension of a license. 12 V AC § 5-412-90. Obviously, such action would be based on
an assessment of the totality of the circumstances and history of compliance.
Licensure of an abortion facility is predicated on adherence to VDH regulations,
which necessarily require entry for enforcement. See 12 VAC § 5-412-130(A). While
the challenged regulation poses a risk to an abortion facility's license, so does
noncompliance with VDH standards, the enforcement of which is a legitimate power of
the State. "[A] state has broad power to establish and enforce standards of conduct
within its borders relative to the health of everyone there. It is a vital part of a state's
police power. The state's discretion in that field extends naturally to the regulation of all
professions concerned with health." Barsky v. Bd ofRegents, 347 U.S. 442,449 (1954).
The regulation requires a warrant in the absence of consent, and while the
licensure of an abortion facility requires compliance with VDH regulations, enforced via
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inspections, an abortion facility may nonetheless decline entry to government inspectors
if they so choose. Suspension of a license is not a certain consequence.
Accordingly, upon review of the totality of the circumstances, the Court concludes
that Plaintiffs have failed to establish that their consent to VDH inspections is
involuntary. Plaintiffs are sophisticated business entities, staffed with medical
professionals, operating under an extensive regulatory regimen. They are aware that the
regulations provide for unannounced inspections of their facilities, which is a common
occurrence among similarly situated licensed entities, as well as a public necessity to
ensure the physical safety of patients. Further, as evidenced by this lawsuit, they are
aware of the terms under which VDH may perform an inspection-terms that explicitly
require that inspectors obtain their consent or an inspection warrant. There is no
evidence on the record that Plaintiffs have declined an unannounced inspection or even
raised an objection to one. To the contrary, the evidence supports a finding that
inspections are a cooperative effort between the clinics and inspectors. Accordingly, the
Court finds that Plaintiffs have failed to show that their consent to inspections is
involuntary and, consequently, that a Fourth Amendment violation has occurred.
V.
CONCLUSION
Among the difficult tasks confronted by a federal court resolving challenges to
abortion statutes and regulations is distinguishing issues that rise to constitutional
proportions from those vested in the legislative branch of government. Federal courts
have carefully navigated this fragile boundary and exercised considerable restraint where
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appropriate. This line of demarcation, however, is not well-illuminated and is sometimes
difficult to identify in the midst of spirited public debate.
While the decision to undergo an abortion procedure is deeply personal, respect
for potential life, along with the health and welfare of women seeking an abortion, are
also cardinal considerations. States' rights to safeguard these well-recognized interests
rest on firm precedential terrain, as long as they do not significantly inhibit a woman's
constitutional right of access to a pre-viability abortion procedure. Casey requires
reviewing courts to consider the burdens a law imposes on abortion access together with
the benefits those laws confer. 505 U.S. at 887-98. This Court's resolution of these
controversial issues is guided by these firmly enshrined tenets.
Based on the foregoing analysis, the Court finds the FGI Guidelines on Design and
Construction for Health Care Facilities, mandated by 12 VAC § 5-412-370, Part VII, to
be unnecessary and unduly burdensome with respect to first trimester procedures. The
FGI Guidelines, however, are severable from the remainder of the regulations at issue in
Count II, which were not shown to be otherwise unduly burdensome. Furthermore, the
evidence presented precludes the Court from finding that enforcement of the FGI
Guidelines as to surgical second trimester abortions is unduly burdensome.
With respect to the Hospital Requirement in Count III, requiring all second
trimester abortions to be performed in general hospitals or outpatient surgical hospitals,
pursuant to Va. Code Ann. § 18.2-73, the Court finds the requirement unduly
burdensome in part. States have broad discretion to regulate medical care when
supported by articulable medical necessity, provided it does not unduly impede a
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woman's access to abortion care. The necessity that all second trimester procedures,
including aspiration and similar non-surgical procedures, must be performed in a hospital
setting is unsupported by the evidence. The evidence also demonstrated that it is unduly
burdensome, based on the fact that only two Virginia facilities routinely perform second
trimester procedures.
The Court therefore finds that enforcement of the FGI Guidelines with respect to
first trimester abortion procedures, and the requirement that non-surgical33 second
trimester abortion procedures-up to the point of viability-be performed in outpatient
surgical hospitals, present a substantial obstacle to women seeking an abortion and
impose an undue burden on that right, in violation of the Due Process Clause of the
Fourteenth Amendment. Enforcement of those provisions, in their current form, will be
enjoined. As a result, enforcement of 12 VAC § 5-412-230(A), the regulation that
prevents abortion facilities from performing second trimester abortion procedures, will be
enjoined as to pre-viability, non-surgical second trimester abortion procedures. On the
other hand, evidence of the heightened potential for complications warrant the
requirement that surgical abortion procedures during the second trimester should be
performed in a hospital setting.
With respect to Count IV, although Plaintiffs presented compelling evidence that
APCs are capable of performing first trimester abortion procedures, courts have
uniformly afforded states broad latitude in deciding what medical procedures should be
33
A surgical procedure involves an incision into the body. Aspiration and medication abortions
do not involve surgery. (Tr. 877:2-15.)
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performed by physicians, absent proof that such restriction would be a substantial
obstacle to a woman's access to abortion services. While the limitation may be
inconvenient for some individuals, this Court is not convinced that it imposes an undue
burden.
The evidence revealed that second trimester abortion procedures clearly involve
enhanced risks and potential complications, particularly in the later stages. The record
evidence clearly justifies limiting second trimester abortion procedures to physicians
only. Therefore, based on a seamless line of authority, this Court cannot conclude that
the Physician-Only law at issue in Count IV, is either unduly burdensome or improvident
when weighed against the State's well-recognized responsibility for ensuring safe
abortion care.
For the reasons set forth in this Memorandum Opinion, the Court finds that both
the Informed Consent statute, Va. Code Ann.§ 18.2-76 (Count V), and the Fourth
Amendment challenge to the facility inspection requirement, 12 VAC § 5-412-l00(A)
(Count VIII), withstand constitutional challenge. Plaintiffs have failed to demonstrate by
a preponderance of the evidence that the requirements of Va. Code Ann. § 18 .2-76,
requiring a mandatory ultrasound and waiting period, amount to a substantial obstacle
preventing a woman's access to abortion care in Virginia. Plaintiffs have further failed to
show that the statute's informed consent requirement imposes an undue burden.
Undoubtedly, the requirement that abortion clinics submit to biennial inspection,
pursuant to 12 VAC § 5-412-1 00(A), is burdensome for clinic personnel. However, it is
no more burdensome than inspection requirements for other medical facilities that
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provide similar services. In fact, the evidence revealed that most clinics are not only
cooperative, but assist with the inspection process. Inspectors are required to request
permission prior to entry. If an abortion provider refuses to consent to inspection, the
inspectors are required to obtain a search warrant before entering. License suspension is
a possible but not automatic consequence of noncompliance, as it is with any other
violation of regulatory requirements. See 12 VAC § 5-4 l 2-l 30(A). Abortion providers
are aware of the inspection requirement when they are licensed and, according to the
evidence, appear to uniformly comply. The Court therefore concludes that Plaintiffs'
Fourth Amendment claims in Count VIII are unsupported by the evidence.
An appropriate Order will accompany this Memorandum Opinion.
Henry E. Hudson
Senior United States District Judge
Date: 5~prc...,J.c"'
Richmond, VA
~ 01 201'1
67
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