Falls Church Medical Center, LLC et al v. Oliver et al

Filing 52

MEMORANDUM OPINION (Defendants' Motions to Dismiss Plaintiff's Complaint). Signed by District Judge Henry E. Hudson on 09/26/2018. (smej, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

FALLS CHURCH MEDICAL CENTER,
LLC d/b/a FALLS CHURCH

HEALTHCARE CENTER,et al.
Plaintiffs,
Civil Action No. 3:18cv428-HEH

V.

M.NORMAN OLIVER, VIRGINIA
HEALTH COMMISSIONER,et al.
Defendants.

MEMORANDUM OPINION

(Defendants' Motions to Dismiss Plaintiffs' Complaint)

This is an action filed by five Virginia healthcare providers* who offer abortion
care or services seeking declaratory and injunctive relief Jffom what they contend are

overly burdensome statutes and regulations. Plaintiffs maintain that the present
regulatory regimen poses a substantial obstacle to the provision of abortion services, in

violation ofthe Fourteenth Amendment to the United States Constitution.^ They allege
that contemporary abortion procedures, even for second trimester abortions, are
extremely safe and that resulting complications necessitating advanced medical care are

rare. Plaintiffs seek to enjoin enforcement of related licensing provisions, oversight

By Order entered August 20,2018,this Court granted Plaintiffs leave to amend their Complaint
by adding an additional party. The Court granted the added party's motion to proceed under the

peudonym "Dr. Jane Doe."
Defendants acknowledge,"Plaintiffs have raised a number of cogent policy objections that
warrant prompt and careful consideration by Virginia lawmakers and regulators." (Defs.' Mem.
Supp. Mot. Dismiss 13,ECF No. 21.)

regulations, and statutes, along with state criminal laws enacted to enforce these
provisions.

The Amended Complaint(EOF No.41)names an expansive field of public

officials as Defendants, encompassing almost all associated regulatory agencies, as well
as commonwealth's attorneys in jurisdictions where facilities providing abortion services

are located.^ Presently before the Court is a Motion to Dismiss Plaintiffs' Complaint"*
(ECF No. 20), filed by the Attorney General of Virginia on behalf of all Defendants,

except Robert Tracci, Commonwealth's Attorney for Albemarle County, who chose to

file his own Motion to Dismiss and supporting memorandum(ECF Nos. 22, 23).^
Defendants seek dismissal of all counts under Federal Rule of Civil Procedure 12(b).
Both sides have submitted memoranda supporting their respective positions. The Court
heard oral argument on Defendants' Motions on September 6,2018.
To facilitate analysis ofthe individual claims, the original four Plaintiffs, Falls
Church Medical Center, LLC; Whole Woman's Health Alliance; All Women's
Richmond, Inc.; and Virginia League for Planned Parenthood, will be referred to as
The named Defendants include: M.Norman Oliver, Virginia Health Commissioner; Robert
Payne, Acting Director ofthe Virginia Department of Health's Office of Licensure and

Certification; Faye O.Prichard, Chairperson ofthe Virginia Board of Health; Theophani Stamos,
Commonwealth's Attomey for Arlington County and the City of Falls Church; Robert Tracci,
Commonwealth's Attomey for Albermarle County; Shannon L. Taylor, Commonwealth's
Attomey for Henrico County; Anton Bell, Commonwealth's Attomey for Hampton; Michael N.
Herring, Commonwealth's Attomey for the City of Richmond; and Colin Stolle,

Commonwealth's Attomey for the City of Virginia Beach, each in his or her official capacities,
as well as their employees, agents, and successors. They will be collectively referred to as
"Defendants."

Since the Amended Complaint only added a party plaintiff but was filed after the Motions to

Dismiss, the Court will reference the Amended Complaint for this Memorandum Opinion.
Robert Tracci's Motion to Dismiss Plaintiffs' Complaint tracks the arguments advanced by the
Attomey General of Virginia. Where appropriate, he will be referred to as "Tracci."

"abortion providers" and Dr. Jane Doe will be referred to as "Dr. Doe." Where

appropriate, the Plaintiffs collectively will simply be referred to as "Plaintiffs." This

distinction will be particularly significant in the analysis ofthe standing issue.
By way of historical context, Plaintiffs chronicle the administrative and legislative
development of what they argue are constitutionally offensive obstacles to a woman's

right to seek an abortion in Virginia. According to Plaintiffs, although abortions in
Virginia have been regulated since 1848, the genesis ofthe regulatory scheme at issue
was a statutory amendment adopted by the Virginia General Assembly in 2011. "In

March 2011,the Legislature amended an existing statute governing the regulation of

'hospitals, nursing homes, and certified nursing facilities' by adding a sentence requiring
VBH [Virginia Board of Health] to regulate any medical facility that provides as few as

five first trimester abortions in a month as a type of'hospital.' Va. Code Ann. § 32.1-

127(B)(1)." (Am. Compl.f 67.) As a result. Plaintiffs contend that facilities providing
first trimester abortion services were required to comply with a wide swath of restrictive

regulations. These mandates dictated strict standards for construction, staffing,
equipment, enhanced training, infection prevention, and facility security. {Id. ^ 68.)

According to the Amended Complaint, as a result of its enhanced regulatory
responsibilities, the VBH promulgated a host ofcodified requirements governing

abortion facilities. These requirements included enhanced recordkeeping, personnel and

staffing requirements, restrictions on employment of physicians not licensed to practice
in the Commonwealth of Virginia, periodic inspections by the Virginia Department of
Health("VDH"),including allowing such inspectors to review patient records, and
3

requiring staff to provide certain medical information to patients prior to administering an
abortion. {Id. T[ 69.) Plaintiffs challenge these restrictive requirements as oppressive and
calculated to unjustifiably limit women's access to abortion facilities.

Plaintiffs also focus their challenge on several other regulatory measures which,

they allege, VDH adopted in response to legislation enacted in 1975. That legislation
requires abortions performed during the second trimester ofpregnancy to be carried out

in a licensed hospital. Va. Code Ann. § 18.2-73. As a result, any such procedure must be
performed in a facility that qualifies and meets the regulatory requirements of an
outpatient surgical hospital. Plaintiffs argue that the onerous regulatory requirements
governing outpatient surgical hospitals "are wholly inappropriate" for safe abortion

procedures and constitute a restraint on access to them. (Am. Compl.% 72.)

Plaintiffs also take issue with § 18.2-72 ofthe Virginia Code, adopted in 1975, the
so-called "Physician-Only Law," which exempts only licensed physicians from

Virginia's general criminal ban on abortion. Plaintiffs contend that this piece of
legislation unjustifiably limits "the pool of abortion providers, even while advanced
practice clinicians("APCs")—including licensed nurse practitioners, CNMs,and

physician assistants—safely and routinely provide abortion care, including medication
and aspiration abortion, in other states throughout the country." (Id. 173.)^
Plaintiffs also challenge the so-called "Felony Abortion Statute," Va. Code Ann. § 18.2-71,
which provides criminal and civil penalties for failure to comply with governing federal and
local laws and regulations. Plaintiffs point out that even after the Supreme Court's decision in
Roe V. Wade,410 U.S. 113(1973),"established that the U.S. Constitution protects abortion as a

fund^ental right, Virginia retained the Felony Abortion Statute, which makes performing an
abortion a felony by default, amending it only enough to exempt providers from penalties in
select circumstances." (Am. Compl.

81-82.)

Finally, Plaintiffs question the so-called "Two-Trip Mandatory Delay Law," Va.

Code Ann. § 18.2-76(B)-(C), as another example ofthe statutory scheme "restricting
abortion while targeting, marginalizing, and impeding the healthcare professionals who
provide abortion care as well as the patients who seek it." {Id. T[ 80.) This statutory
provision

requires a pregnant person seeking an abortion to undergo a mandatory
ultrasound and then delay their abortion for at least 24 hours, unless they
live at least 100 miles from where the abortion is to be performed, in which
case the delay is reduced to two hours....[T]his requirement mandates
two separate trips to a facility: one for an ultrasound and the second for an

abortion. The law also requires providers to verbally offer patients the
chance to view the ultrasound image, receive a printed copy, and listen to
fetal heart tones, and then to obtain written certification of whether the

patient declined or accepted. Va. Code Ann. § 18.2-76(B)-(C).
{Id H 74.)

In a related statutory provision targeted by Plaintiffs, women seeking abortion care

are required to receive information concerning the procedure to enable them to provide
informed consent. Women receiving such information must then wait at least 24 hours

thereafter before obtaining an abortion. Va. Code Ann. § 18.2-76(A),(D). The Two-Trip
Mandatory Delay Law and the informed-consent-information requirement were enacted

by the Virginia General Assembly in 2001, and the ultrasound requirement was adopted
in 2012. See 2001 Va. Acts chs. 473,477; 2012 Va. Acts ch. 131.

Plaintiffs' constitutional challenge is framed in an eight-count Amended

Complaint which contends that these regulatory and statutory provisions are overly

burdensome and medically unnecessary in light of more modem,advanced procedures
that are utilized to carry out abortions. Counts 1 through V,premised on different
5

theories, allege violations of"Substantive Due Process — Rights to Liberty and Privacy,"
including Licensing Statute, Licensing Regulations, Hospital Requirement, Physician-

Only Law, and Two-Trip Mandatory Delay Law,respectively. Count VI, styled

"Substantive Due Process - Cumulative Burden," is a composite claim comprised ofthe
collective effect ofthe regulations and laws at issue in Counts I through V. Count VII
alleges that "[t]he Hospital Requirement, in conjunction with the Criminalization Laws,

is unconstitutionally vague and violates Plaintiffs' rights to due process

"(Am.

Comp.^ 266.) Finally, Count VIII focuses on provisions ofthe Licensing Regulations
which permit "at least biennial unannounced, warrantless inspections ofPlaintiffs'

facilities under threat of license suspension or revocation, in the absence of probable
cause to believe that any violation has occurred." {Id. ^ 268.) Plaintiffs allege that such

an inspection violates the Fourth Amendment. They seek declaratory and injunctive
relief.

Defendants urge the Court to dismiss Counts I, II, IV, V, VI, and VIII under Rule

12(b)(6) for failure to state a claim upon which relief can be granted, and Counts III and

VII under Rule 12(b)(1) for lack of Article III standing. Alternatively, with respect to
Count II, challenging the licensing regulations, the Defendants urge the Court to abstain

from action and dismiss that count without prejudice in light of ongoing state,judicial,
and administrative proceedings.^

This Court requested a status report from the Attomey General's Office describing these
proceedings in greater detail. Unfortunately, the response was unenlightening and simply
indicated that the pertinent regulations were under review.

This Court's review of a motion to dismiss filed under Federal Rule of Civil

Procedure 12(b)(6)is both informed and constrained by the well-pleaded facts contained

in the Amended Complaint.^ The task at hand is to determine the sufficiency ofthe
complaint,"not resolve contests surrounding the facts, the merits of a claim, or the

applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943,952(4th

Cir. 1992)(citation omitted). In considering a motion to dismiss, plaintiffs well-pleaded
allegations are taken as true, and the complaint must be viewed in the light most
favorable to the plaintiff. T.G. Slater & Son, Inc. v. Donald P. & Patricia A. Brennan

LLC,385 F.3d 836,841 (4th Cir. 2004). Legal conclusions, however, enjoy no such

deference by the reviewing court. Ashcroft v. Iqbal, 556 U.S. 662,678(2009). Although
Fed. R. Civ. P. 8(a)(2) only requires "a short and plain statement ofthe claim showing
that the pleader is entitled to relief," to survive Rule 12(b)(6)scrutiny, a complaint must
contain "enough facts to state a claim to reliefthat is plausible on its face." Bell Atl
Corp. V. Twombly,550 U.S. 544, 570(2007).

Before turning to the facial sufficiency ofthe Amended Complaint, the Court will

initially address the fundamental jurisdictional requirement of Article III standing as to
Counts III and VII. With respect to Count III, which challenges the requirement under
§ 18.2-73 that second trimester abortions be performed in a hospital setting, subject to

stringent licensing requirements. Defendants rejoin that each Plaintiff facility statutorily
qualifies as a hospital. "Each plaintiff is a facility licensed pursuant to Article I of

Significant portions ofthe oral argument in this case strayed from the four comers ofthe
Amended Complaint and will not be considered in the Rule 12(b)(6) analysis.

Chapter 5 of Title 32.1, and each plaintiff is a facility in which the primary function is the
provision of diagnosis, oftreatment, and of medical and nursing services, surgical or
nonsurgical, for two or more nonrelated individuals." (Defs.' Mem. Supp. Mot. Dismiss
7.)

In further support ofthis contention. Defendants draw the Court's attention to a

2010 opinion ofthe Attorney General of Virginia concluding that the definition of
"hospital," as articulated in Title 32.1, encompasses facilitates in which abortions are

performed. {Id.) While this definition may apply to the abortion providers, it would not
appear to include newly-added Dr. Doe, a physician board certified in obstetrics and

gynecology. Dr. Doe's practice includes pre-viability abortion care(Am.Compl.^ 23),
but her practice is not licensed as a hospital. {Id. H 136.)

While Defendants "do not dispute the [P]laintiffs' standing to challenge the
regulations or their statutory designation as a hospital," they reason that ifPlaintiffs are

not subject to prosecution under § 18.2-36, they have suffered no injury in fact. (Defs.'
Reply Mot. Dismiss 7, ECF No. 28.)

Whether the alleged injury in this case, either actual or imminent, is quantitatively
sufficient to satisfy Article III turns on more than simply the threat ofprosecution.
Plaintiffs argue that the injury resulting from the so-called "hospital requirement" for
second trimester abortions includes the financially-prohibitive cost and inconvenience of

complying with regulatory requirements. "Plaintiffs allege that they would have to

expend significant resources to meet the Certificate ofPublic Need(COPN)and facility
design and construction standards required to obtain an Outpatient Surgical Center

license" and meet the statutory definition ofa hospital. (Pis.' Mem. Opp'n Mot. Dismiss
22,ECF No. 25.) According to Plaintiffs, ifthey provided second trimester abortion care
in their facilities as currently constituted,"they would face loss oflicensure and risk civil
fines and criminal prosecution." {Id.)

To demonstrate standing. Plaintiffs must show actual or imminent injury which is
not merely speculative or hypothetical. Benham v. City ofCharlotte, 635 F.3d 129, 135

(4th Cir. 2011). To establish the requisite case or controversy, a "plaintiff must satisfy
the three requirements that combine to form the 'irreducible constitutional minimum of

standing. Specifically, a plaintiff must demonstrate that:(1)it has 'suffered an injury in

fact ;(2)there exists a 'causal connection between the injury and the conduct complained
of; and(3)a favorable judicial ruling will 'likely' redress that injury." Va. ex rel

Cuccinelli v. Sebelius, 656 F.3d 253, 268(4th Cir. 2011)(citing Lujan v. Def of Wildlife,
504 U.S. 555, 560(1992)). In this case, the injury complained ofis arguably traceable in
large measure to the burden imposed by Defendants' regulatory action or statutory duties.
Friends ofthe Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181 (2000).
Given the alleged regulatory burden placed on abortion providers in the

Commonwealth of Virginia, Plaintiffs have established a quantitatively sufficient,

legally-protected interest to demonstrate standing at this stage ofthe proceedings to

challenge the constitutional underpinnings and vagueness ofthe hospital requirement in

Counts III and VII ofthe Complaint.^ Defendants may well be correct that the original
With respect to Count VII, viewing the implicated statutes in context, it does not appear that the
language is unconstitutionally vague. However,the Court will wait for a more fulsome record

before determining that these statutes create an unconstitutionally undue burden as-applied.

Plaintiffs are not subject to criminal prosecution under § 18.2-73, however, it appears that
Dr. Doe enjoys no such protection. "At least one plaintiff must have standing to seek

each form ofrelief requested in the complaint." Town ofChester v. Laroe Estates, Inc.,
137 S. Ct. 1645, 1651 (2017). Dr. Doe, at a minimum, satisfies that requirement.
Before reviewing the adequacy ofthe other counts ofthe Amended Complaint, it
is important to restate several well-settled, overarching principles guiding this Court's

hand. First, it is beyond debate that the United States Supreme Court has consistently
upheld the right of a woman to choose to have an abortion before viability, without undue
interference from the state. Planned Parenthood ofS.E. Pa. v. Casey, 505 U.S. 833, 846

(1992)(building on the holding ofRoe v. Wade,410 U.S. 113(1973)). Equally enduring
are States' "legitimate interests from the outset ofthe pregnancy in protecting the health
ofthe woman and the life ofthe fetus that may become a child." Gonzales v. Carhart,
550 U.S. 124, 145 (2007). States have a legitimate interest in ensuring that a mother's
decision to abort a child is well informed. Id. at 160.

The analytical framework employed by this Court is further informed by Whole
Woman's Health v. Hellerstedt, 136 S. Ct. 2292(2016). In Whole Woman's Health,
Justice Breyer, writing for the Court noted:

We begin with the standard, as described in Casey. We recognize that the
"State has a legitimate interest in seeing to it that abortion, like any other
medical procedure, is performed under circumstances that insure maximum

safety for the patient." But, we added,"a statute which, while furthering [a]
valid state interest, has the effect of placing a substantial obstacle in the
path of a woman's choice cannot be considered a permissible means of

serving its legitimate ends." Moreover,"[ujnnecessary health regulations
that have the purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the right."
10

136 S. Ct. at 2309 (first quoting Roe,410 U.S. at 150; then quoting Casey, 505 U.S. at
877, 78). Justice Breyer's explanation ofthe Court's reasoning in Whole Woman's

Health succinctly captures the claims animating the Amended Complaint presently before
this Court.

Retreating somewhat from preexisting abortion jurisprudence, the Court in Casey
adopted a balancing analysis—consideration of"the burdens a law imposes on abortion
access together with the benefits those laws confer." Whole Woman's Health, 136 S. Ct.

at 2309(citing Casey, 505 U.S. at 887-88). The Court amplified this standard by

explaining that this analysis requires a contextual, fact-based inquiry to assess the impact
ofthe alleged regulatory burden as specifically applied. 136 S. Ct. at 2310. This precept
will guide the Court's analysis ofthe present issues.

With respect to Count II (Substantive Due Process- Licensing Regulations), this
Court also declines the Defendants' invitation to stay this litigation or abstain action in

light ofthe pending "state lawsuit challenging the current regulations of abortion

providers on state administrative procedure grounds." (Defs.' Mem. Supp. Mot. Dismiss
8-9)(referencing the matter of Melendez v. Va. State Bd. ofHealth, No. CL17-1164,
which is currently pending in the Circuit Court of Henrico County, Virginia). As

Plaintiffs argue, and Defendants appear to concede, the action pending in the circuit court
turns on procedural compliance with state law. ijd.) The constitutional challenges raised

in the immediate case do not unnecessarily interfere with "'difficult questions ofstate law
bearing on policy problems ofsubstantial public import whose importance transcends the

11

result in the case [] at bar.'" Richmond, Fredericksburg & Potomac R.R. Co. v. Forst,4

F.3d 244,253(4th Cir. 1993)(quoting

Orleans Pub. Serv., Inc. v. Council ofNew

Orleans, 491 U.S. 350, 361 (1989)(interpreting

v. Sun Oil Co., 319 U.S. 315

(1943))).

As the Supreme Court counseled in Colo. River Water Conservation Dist. v.

United States,"[ajbstention from the exercise offederal jurisdiction is the exception, not
the rule." 424 U.S. 800, 813(1976). It is only deployed in the exceptional circumstances

where deferring to the state court would clearly serve an important countervailing
interest. Id.\see Pomponio v. Fauquier Cty. Bd. ofSupervisors, 21 F.3d 1319, 1324(4th
Cir. 1994){en banc), cert, denied, 513 U.S. 870(1994). This is not such a case given the
significant constitutional questions at issue, and therefore, abstention is inappropriate.
Tuming to Defendants' Motions to Dismiss, to survive Rule 12(b)(6) review.

Count I(Substantive Due Process-Licensing Statute); Count II (Substantive Due

Process - Licensing Regulations); Count IV (Substantive Due Process -Physician-Only
Law); Count V (Substantive Due Process — Two-Trip Mandatory Delay Law); Count VI
(Substantive Due Process - Cumulative Burden); and Count VIII (Fourth AmendmentProtection Against Unreasonable Searches- Licensing Regulations), Plaintiffs must

allege facts sufficient "to raise a right to relief above the speculative level," stating a
claim that is "plausible on its face" rather than merely "conceivable." Twombly,550
U.S. at 555, 570. "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that [plaintiff is entitled to
the relief sought]." Iqbal, 556 U.S. at 678 (citing Twombly,550 U.S. at 556).
12

Before conducting a closer review ofthe sufficiency of each claim, it is important
to restate that the as-applied burden analysis is a contextual, fact-based inquiry. Whole
Woman's Health, 136 S. Ct. at 2310. This often requires the development of a

particularized record assessing the impact of a statute or regulation on a specific
jurisdiction. A common element ofeach substantive due process claim in the Amended
Complaint is the potential criminal enforcement ofthe regulatory provisions at issue,
arguably compounding the burden on a woman's fundamental right to choose abortion

before viability. Furthermore, Plaintiffs' contention that the aggregate impact ofthe
collective burdens alleged in the Amended Complaint has a compounding effect adds an
additional dimension to the analysis at this stage.
Counts I through V are closely allied, alleging various violations of"Substantive

Due Process -Rights to Liberty and Privacy." (Am. Compl.

252-264.) Plaintiffs'

overarching contention is that Virginia's regulatory scheme violates the Fourteenth

Amendment because it imposes an undue burden on the right to choose abortion prior to
viability.

Count I focuses on Va. Code Ann. § 32.1-127(B)(1). In pertinent part, this statute

provides that "facilities in which five or more first trimester abortions per month are
performed shall be classified as a category of'hospital.'" § 32.1-127(B)(l)(v).
In their Reply Memorandum,Defendants highlight several relevant Supreme Court decisions
addressing the facial constitutional soundness of certain abortion regulations and procedures.
(Defs.' Reply Mot. Dismiss 3.) Obviously, these decisions are stare decisis and will be accorded
proper deference in the context oftheir application to the claims before this Court. Claims

contending undue burden are necessarily fact driven suggesting as-applied analysis. However, as
the Supreme Court noted in Whole Woman's Health,"[n]othing prevents [a] Court from
awarding facial relief as the appropriate remedy for petitioners' as-applied claims." 136 S. Ct. at
2307.

13

According to Plaintiffs, this classification triggers a host of oppressive regulatory

requirements "governing management, personnel, recordkeeping, counseling, testing,
[and] equipment... (Am.Comp.^ 103.) In addition, implementing regulations
require abortion facilities to adopt organizational bylaws, a quality improvement
committee, and to submit to annual compliance inspection. {Id.

117-119.) Count II

challenges the allegedly unjustified burden imposed by the licensing regulations, while

Count III impugns the necessity for abortion providers to comply with certain hospital
regulations as a condition oflicensure. Plaintiffs argue that such rigid regulations lack

any medical justification because abortion is "a safe outpatient procedure, with extremely

low complication rates, that does not need to be performed in a sterile field." {Id. ^ 114.)
"[N]o incision is required, and general anesthesia is not used

[It] entails only the oral

administration of medications." {Id. T 116.) Plaintiffs maintain that these licensing

requirements are "far more burdensome than Virginia's regulations governing providers
of comparable office-based outpatient care." {Id. ^ 4(b).)

The Defendants aptly respond that "the constitutionality of Virginia's regulatory
scheme for abortion providers thus depends on the implementing regulations, not the

mere fact that abortion providers are defined by statute as hospitals." (Defs.' Mem. Supp.
Mot. Dismiss 5.)

The core claim in Counts I and II, however, is the stringency ofthe regulations
governing abortion providers and their effect on availability, not their arguable

classification as a form of hospital. Plaintiffs have therefore pleaded a plausible claim of
undue burden at this stage as to Counts I and II.
14

The statutory underpinning of Count III is Va. Code Ann. § 18.2-73. This code
section provides:

Notwithstanding any ofthe provisions of§ 18.2-71 [providing penalty
provisions for performing certain abortions] and in addition to the
provisions of§ 18.2-72 [allowing licensed physicians to perform abortions

during the first trimester during pregnancy], it shall be lawful for any
physician licensed by the Board of Medicine to practice medicine and
surgery, to terminate or attempt to terminate a human pregnancy or aid or
assist in the termination of a human pregnancy by performing an abortion
or causing a miscarriage on any woman during the second trimester of
pregnancy and prior to the third trimester of pregnancy provided such
procedure is performed in a hospital licensed by the State Department of
Health or operated by the Department ofBehavioral Health and
Developmental Services.

Va. Code Ann.§ 18.2-73 (emphasis added).

Count III challenges the hospital requirement articulated in Va. Code Ann. § 18.2-

73, as applied to second trimester abortions. Violations ofthis provision are prosecuted
as a Class 4 felony. See Va. Code Ann.§ 18.2-71. This provision requires that all
second trimester procedures be performed in an inpatient hospital or outpatient surgical
center. According to the Amended Complaint, administrative 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 HVAC systems, finishes for ceilings, walls, and
floors, and recovery room dimensions and layout, among others.
(Am. Compl.][ 133.) Plaintiffs further maintain that "[n]o scientific evidence indicates

that abortions, including second trimester abortions, performed in an inpatient hospital or
According to Plaintiffs, surgical centers seeking licensure face the formidable hurdle ofthe

Certificate ofPublic Need process. See 12 Va. Admin. Code § 5-220-20. Plaintiffs further point
out that "[t]he application fee alone is up to $20,000, depending on the estimated cost ofthe
project. 12 Va. Admin. Code § 5-220-180." (Am. Compl.1142.)
15

Surgical Center are safer than those performed in an appropriate medical office setting."
(Jd. 1137.) They add that major medical associations "reject the notion that all second

trimester abortions should be performed in hospitals or Surgical Centers." (Id. 1138.)
Plaintiffs argue that this regulatory scheme places an undue burden on the fundamental

right to choose an abortion prior to viability because only two facilities in Virginia meet
the regulatory requirements and readily provide second trimester abortion care in the

same manner as inpatient hospitals or outpatient surgical hospitals. As a result ofthese

regulations, there are only two outpatient surgical centers qualified to perform second
trimester abortions in Virginia. (Id. 1198.)

When viewed in the context of facility access, Plaintiffs' as-applied claims in

Count III rise above the speculative level and adequately meet the facial plausibility
standard articulated in Twombly. 550 U.S. at 555,570. However, as Defendants

perceptively point out, the Supreme Court has upheld surgical center requirements for
second trimester abortions when facially challenged. Simopoulos v. Va., 462 U.S. 506,
519(1983). In Simopoulos, the Supreme Court definitively stated,"[w]e conclude that
Virginia's requirement that second-trimester abortions be performed in licensed clinics is

not an unreasonable means offurthering the State's compelling interest in 'protecting the
woman's own health and safety.'" Id.(quoting Roe,410 U.S. at 150). Therefore, to the

extent that Count III is construed to be a facial challenge, it fails to pass Rule 12(b)(6)
review.

In Count IV, Plaintiffs contend that the physician-only law, codified in § 18.2-72,
has posed a needless and substantial obstacle to abortion access. They further maintain
16

that "medical advances and training since 1975 have rendered restrictions like the

Physician-Only Law obsolete." (Pis.' Mem. Opp'n Mot. Dismiss 14.) They suggest that
trained advanced practice clinicians are capable ofproviding safe and effective abortion
care. Plaintiffs add that:

There is no statistically significant benefit, as measured by complication
rates, failure rates, or any other outcome, when aspiration abortions are
performed by physicians as compared to APCs[Advanced Practice
Clinicians]. Indeed, peer-reviewed studies uniformly conclude that APCs
can safely and effectively provide both aspiration and medication abortion,
and leading medical and public health authorities agree.
(Am. Compl.1165.)
Defendants respond, in essence, that this Court need not venture into an undue

burden analysis with respect to physician-only laws. Highlighting two decisions from the
Supreme Court, they maintain that the constitutionality ofrestricting the performance of
abortions to licensed physicians is a settled issue. For support. Defendants draw the

Court's attention to the Supreme Court's precedent in Planned Parenthood ofS.E.

Pennsylvania, etal v. Casey,505 U.S. 833(1992)

Mazurekv. Armstrong, 520 U.S.

968(1997).

Plaintiffs maintain that Defendants read the holding in Mazurek too broadly.
Under Plaintiffs' interpretation,''''Mazurek upheld a physician-only requirement where the
question before the Court was whether the law imposed an undue burden because it had

an improper

(Pis.' Mem. Opp'n Mot. Dismiss 13)(emphasis in original).

Acknowledging that the record demonstrated insufficient evidence of a substantial

obstacle to abortion, the Supreme Court restated that "prior cases Teft no doubt that, to

17

ensure the safety ofthe abortion procedure, the States may mandate that only physicians

perform abortions.'" Mazurek, 520 U.S. at 974—75(quoting City ofAkron v. Akron Ctr.
for Reproductive Health, Inc., 462 U.S. 416,447(1983)). The Court in Mazurek also

pointed out that forty other states in the nation had similar laws restricting the
performance of abortions to licensed physicians. 520 U.S. at 969. Of additional

relevance to the immediate case, the Court in Mazurek noted that "the only extant study
comparing the complication rates for first-trimester abortions performed by [physicianassistants] with those for first-trimester abortions performed by physicians found no
significant difference." Id. at 973 (citation omitted).

But this line of argument is tempered somewhat by Casey itself. In the course of

upholding the physician-only requirement at issue in that case, the Supreme Court
emphasized that "[o]ur 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." Casey, 505 U.S. at 885 (citation omitted). However, as

mentioned above, a significant issue bypassed in Mazurek was the possible effect of

compelling evidence of a substantial obstacle to abortion posed by a physician-only
requirement. Mazurek, 520 U.S. at 972.

The Supreme Court has consistently cautioned that states have significant latitude
to enact regulations to further the health or safety of a woman seeking an abortion.
However, as the Court noted in Casey,"[ujnnecessary health regulations that have the

purpose or effect of presenting a substantial obstacle to a woman seeking an abortion
18

impose an undue burden on the right." 505 U.S. at 878. "An undue burden exists, and

therefore a provision oflaw is invalid, if its purpose or effect is to place a substantial

obstacle in the path of a woman seeking an abortion before the fetus attains viability." Id.
Therefore, in the context of an as-applied analysis, the door remains slightly ajar
as to whether the physician-only law in Virginia places an undue burden on the

fundamental right to choose an abortion prior to viability. Otherwise, from a facial
perspective, the physician-only requirement rests on firm precedential terrain. Thus,

Count IV survives Rule 12(b)(6) as-applied review and may proceed on that particular
footing.

Count V,styled as "Two-Trip Mandatory Delay Law," focuses on Va. Code Ann.

§ 18.2-76. Under this statutory provision, women seeking an abortion "are forced to
undergo a mandatory ultrasound and then delay their abortion at least 24 hours, unless

they live at least 100 miles from the facility where the abortion is to be performed, in
which case the delay is reduced to two hours." (Am. Compl.1208.) Plaintiffs maintain

that the mandatory ultrasound, coupled with the 24-hour delay, is both medically
unnecessary and imposes an undue burden on abortion access. {Id. H 209.) In Plaintiffs'

view, the ultrasound provisions required under § 18.2-76 are unnecessary to ascertain
gestational age. {Id. H 211.)

Additionally, Plaintiffs contend that Virginia's informed consent materials,

mandated by statute, are both unnecessary and factually inaccurate. They also point out

that physicians, such as Dr. Doe, are subject to civil fines, pursuant to § 18.2-76(0)for
failure to provide this information to their patients. {Id. H 227.) In reply, the Defendants
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emphasize that simply because a procedure is medically unnecessary does not mean that

it poses an undue burden. The Defendants argue that none ofthe procedures questioned
in Count V rise to the level of a substantial obstacle to abortion access. Furthermore,the

results ofthe ultrasound are necessary, in Defendants' view, to determine gestational age,
which guides the physician in determining the appropriate procedure.
The Court is mindful that states have significant latitude to enact regulations to

further the health and safety of a woman seeking an abortion, provided they do not
impose an undue burden on that right. The requirement that a woman seeking an

abortion submit to an ultrasound to enable the physician to ascertain the developmental
stage ofthe fetus, does not appear facially to pose an undue burden. Likewise, the receipt
ofinformed consent information would not appear to pose a substantial obstacle.
However, it is conceivable that some other procedures necessitated by § 18.2-76, in
concert, could potentially do so, especially the 24-hour delay. That determination,

however, raises factual issues beyond the boundaries ofthe Amended Complaint. At this
stage, viewing all well-pleaded facts in the Plaintiffs' favor. Count V presents a plausible
as-applied claim. Whether it presents a triable issue must await the development of a
more complete factual record.

Viewed in the context of Plaintiffs' exhaustive Amended Complaint, Count VI-

Substantive Due Process - Cumulative Burden, appears to articulate a theory ofproof as
opposed to a substantive claim. Essentially, it urges the Court to assess the collective
Section 18.2-76(C)requires that the medical professional performing the fetal ultrasound

verbally offer the woman an opportunity to view the ultrasound image and receive a printed
copy, if desired.
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burden imposed by the statutes and regulations at issue in the other counts in determining
whether they pose a substantial obstacle to the fundamental right to choose abortion

before viability. As the Defendants emphasized during oral argument, this type of
freestanding, collective claim is unfamiliar to abortion jurisprudence.
Plaintiffs are, of course, free to argue the collective impact ofthe statutes and

regulations at issue as they affect the burden imposed by each claim. They will not,
however, be considered a separate claim for relief. Therefore, Plaintiffs' Count VI will
be dismissed.

Count VII is a skeletally pleaded claim that "[t]he Hospital Requirement, in
conjunction with the Criminalization Laws,is unconstitutionally vague and violates
Plaintiffs' rights to due process as guaranteed by the Fourteenth Amendment to the U.S.

Constitution because it fails to define the terms 'hospital' and 'second trimester of

pregnancy.'" (Jd. ^ 266.) While even the Defendants agree that Virginia's abortion

statutes need some refinement, and are not a model of clarity, they provide ample
guidance as to what statutorily constitutes a hospital and the "second trimester of

pregnancy," a medical term of art. (Defs.' Mem. Supp. Mot. Dismiss 7.) Inevitably, the

definition ofthese terms will be addressed during the course ofthis litigation, but Count
VII, based on the present record, fails to state an actionable constitutional claim of
vagueness warranting relief under the Due Process Clause ofthe Fourteenth Amendment.

Count VIII ofthe Amended Complaint alleges that Virginia's Licensing
Regulations violate the Fourth Amendment by subjecting Plaintiffs to "biennial
See Simopoulos,402 U.S. at 512 n.4.
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unannounced, warrantless inspections

"(Am. Compl. T| 268.) The regulatory

provision in question, 12 Va. Admin. Code § 5-412-90, grants the Virginia Department of
Health's "duly designated employee[s]" a right of entry to abortion facilities for the

purpose of conducting inspections. 12 Va. Admin. Code § 5-412-90. "Such entries and

inspections shall be made with the permission ofthe owner or person in charge, unless an
inspection warrant is obtained after denial of entry from an appropriate circuit court." Id.
That section further states,"Ifthe owner, or person in charge, refuses entry, this [refusal]

shall be sufficient causefor immediate revocation or suspension ofthe license. Id.
(emphasis added). See 12 Va. Admin. Code § 5-412-130(A)("When the department

determines that an abortion facility is (i)in violation ... ofany applicable regulation ...
the department may deny, suspend, or revoke the license to operate an abortion
facility ....")(emphasis added). A license suspension shall be indefinite in duration,

until the commissioner "determines that the conditions upon which suspension was based

have been corrected and that the interests ofthe public will not be jeopardized by
resumption of operation." Id. at(C).

Plaintiffs argue that the possibility oflicense revocation or suspension is a

coercive measure that invalidates any consent to an inspection, thereby subjecting an
abortion facility's owner to a warrantless search. Defendants contend that the inspections
under the Licensing Regulations are constitutional because they are conducted pursuant
to an owner's consent or a valid warrant. However, either by omission or design.
Defendants' memoranda in support oftheir Motions to Dismiss fail to mention the

potential revocation or suspension that facility owners face ifthey withhold consent to an
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inspection. Viewed in the light most favorable to Plaintiffs, Count VIII states a

sufficiently plausible constitutional claim at this initial stage.
Based on the foregoing analysis, the Defendants' Motions to Dismiss will be

granted in part and denied in part.

An appropriate Order will accompany this Memorandum Opinion.

Henry E. Hudson

Senior United States District Judge

Date: SefT.

iolf

Richmond, VA

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