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Virginia abortion laws upheld requiring ultrasound, waiting period, doctor-only procedures

Antiabortion demonstrators assemble at the Capitol in Richmond in April. (Steve Helber/Associated Press)

A federal judge in Virginia has upheld the state’s law requiring women to have an ultrasound at least 24 hours before obtaining an abortion and a separate measure requiring physicians to perform the procedure.

Abortion rights activists and providers had challenged Virginia laws they said unnecessarily restrict access, particularly for poor women, and make it difficult and expensive for clinics to operate.

After an eight-day trial in federal court in Richmond, the question for the judge was whether regulations affecting health-care providers, facilities and patients present a substantial, unconstitutional obstacle for women seeking abortions.

In a 67-page ruling issued Monday, U.S. District Judge Henry E. Hudson retained the waiting period that requires most women to make two trips — one for an ultrasound and another for the abortion.

“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,” Hudson wrote. But he was not persuaded that the law “amounts to a substantial obstacle preventing women’s access to abortion in Virginia.”

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Hudson’s mixed ruling struck down two regulations: one that required clinics providing early-stage abortions to meet the same facility requirements as surgical hospitals and another limiting all second-trimester abortions to licensed outpatient hospitals.

With only two facilities in Virginia — in Virginia Beach and Richmond — that regularly perform second-trimester abortion procedures, the judge found a “significant burden on women seeking abortion care.” That “causes anxiety, delays, and at times, the inability to undergo an abortion at all,” wrote Hudson, who was appointed by President George W. Bush.

Amy Hagstrom Miller, president of Whole Woman’s Health, a health-care firm with clinics in three states, called the overall decision a disappointment.

“The court did not see clearly how the other restrictions it left in force are not supported by medical evidence and place undue burdens on families,” she said in a statement. “Two-trip mandatory delay laws, inaccurate medical information, forced ultrasounds and physician-only laws harm patients and they have a disproportionate effect on people of color, rural communities, young people, and those who struggle financially.”

Jenny Ma, an attorney at the Center for Reproductive Rights, said Tuesday that the groups are considering an appeal.

Victoria Cobb, president of the antiabortion Family Foundation, praised the ruling as “a near-total repudiation of the abortion industry’s baseless claims” and a victory for “common-sense measures to protect women’s health, safety, and ensure their fully informed consent before making an irreversible decision to end the life of their unborn child.”

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The state Department of Health and the office of Virginia Attorney General Mark R. Herring (D) defended the rules in court, putting the attorney general — an abortion rights supporter — in an awkward position. His office hired a private firm to argue the case, saying it did not have enough staff to handle it.

The office of Gov. Ralph Northam (D) was still reviewing the decision Tuesday.

“The governor has made it clear he believes personal medical decisions should be left to a woman and her doctor — not legislators,” said Northam spokeswoman Alena Yarmosky. “Our administration will continue to work to ensure women have access to the health care they need.”

Republicans, who narrowly control the General Assembly, had hoped to make abortion a major issue in an election year when all 140 seats are on the Nov. 5 ballot and the balance of power is at stake. Earlier this year, Republicans made regular reference to a late-term abortion bill that Del. Kathy Tran (D-Fairfax) presented during the session in January.

The governor then made clumsy remarks defending the bill that opponents used to claim that he supported infanticide, which he did not.

Moves in Alabama, Georgia and other states to pass sharp limits on abortions raised fears that Republicans would also pursue broader abortion limits in Virginia, and spurred Democrats and abortion rights activists to mobilize. That seemed to counter the earlier energy on the other side of the issue.

The Supreme Court is also considering whether to review a similar Indiana law that requires women to wait at least 18 hours after having an ultrasound to obtain an abortion. A panel of the U.S. Court of Appeals for the 7th Circuit said Supreme Court precedent required striking down the law because it “constitutes an undue burden on those seeking an abortion without any known benefits to balance it.”

The Virginia lawsuit was brought by a coalition of abortion rights groups, including the Center for Reproductive Rights, the Virginia League for Planned Parenthood and several abortion clinics across the state.

Expert witnesses for the groups testified at trial that abortion is a relatively safe procedure for women, carrying less risk than a colonoscopy, plastic surgery or tonsillectomy. Between 2009 and 2016, the groups said, the number of medical facilities providing abortion care in Virginia declined by more than half. For second-trimester abortions, Virginia women must travel an average one-way distance of 41 miles, according to expert testimony.

On the other side, a former member of the board of health who testified for the state said facility regulations improve safety and services for women. Because of potential complications, there are benefits to having physicians perform abortions, Mary Catherine Slusher said.

Of the physician-only law, Hudson acknowledged in his ruling that other health-care professionals, such as nurse practitioners and physician assistants, are capable of providing medication for early-stage abortions and safely performing certain procedures in the first trimester.

Requiring a physician may be “inconvenient” for people living in rural areas, the judge wrote, but he said, “this court is not convinced that it imposes an undue burden.” He cited testimony from abortion providers who said most women can be seen within a week and the procedure completed within two weeks.

“Whether it is wise public policy,” he added, “is an issue for the Virginia General Assembly to address.”

Gregory S. Schneider and Robert Barnes contributed to this report.

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