In that case, the justices found that certain restrictions Texas had imposed in the name of protecting women’s health were medically unjustified and intended to make abortions harder to obtain.
The court had long held that states had a legitimate interest in regulating abortion procedures but could not impose an “undue burden” on a woman’s right to terminate a pregnancy before fetal viability. But that “undue burden” was not well defined.
The 2016 ruling made it clear that restrictions that do not advance health and safety constitute “undue burden,” said Amy Hagstrom Miller, president of Whole Woman’s Health Alliance, the lead plaintiff in the Supreme Court case and part of the current Virginia lawsuit. Her organization opened a clinic in Charlottesville in October.
“The Whole Woman’s Health Supreme Court victory was game-changing — affirming that abortion laws must be based on medical evidence,” she said. “We’re using this new standard to challenge dozens of other restrictions, some dating back decades, that are based on ideology, not health or science.”
Shanthi Ramesh, medical director of the Virginia League for Planned Parenthood, said the restrictions make second-trimester abortions especially hard to obtain, with only two facilities statewide meeting the state’s standards.
“Limiting women’s access to only two medical facilities only creates more burdens and delays care,” she said. “As a result, some women are unable to access safe, legal abortion at all because of loss of income from time off work or cost for child care or travel.”
The Family Foundation of Virginia, one of the state’s most prominent advocates for tighter restrictions, said it has public support.
“Virginians support common-sense health standards like ensuring surgeries, including abortion, are performed by doctors,” Family Foundation President Victoria Cobb said. “As the industry continues to lose public support, fails in the legislature and is cut off from taxpayer funding, they run to the courts for a lifeline.”
The suit names Virginia state health officials as defendants. A spokesman for Attorney General Mark R. Herring (D), a vocal supporter of abortion rights whose office typically defends state agencies in litigation, said it was too soon to comment on the case.
“This is an extensive suit involving multiple state statutes and factual allegations so we’re going to take the necessary time to carefully review it and evaluate appropriate defenses,” Herring spokesman Michael Kelly said via email.
House Republican leaders issued a statement calling for Herring to defend the restrictions, which they called “reasonable” and “medically necessary.” They expressed concern that Herring might side with plaintiffs, recalling his decision in 2014 to support a lawsuit challenging Virginia’s now-defunct ban on gay marriage.
“We strongly urge Attorney General Mark Herring to defend the laws of the Commonwealth with the full force of his office,” House Speaker Kirk Cox (R-Colonial Heights) and other House GOP leaders said in the statement. “Should he once again neglect his duty to do so, the Speaker will consider using his authority to hire counsel to defend the law on behalf of the House of Delegates.”
Filed in U.S. District Court in Richmond, the new suit was brought on behalf of the Virginia League for Planned Parenthood and several abortion clinics around the state, including Whole Woman’s Health Alliance in Charlottesville.
Among the Virginia restrictions that the suit calls medically unnecessary are those requiring: that clinics meet hospital-style building standards; that physicians — not nurse practitioners or physician assistants — perform abortions; and that all second-trimester abortions take place in hospitals instead of medical offices.
It also takes aim at a 2012 law requiring women to undergo an abdominal ultrasound and then wait 24 hours before getting an abortion.
Passage of the law drew intense national attention because as originally proposed, the measure would have required that women undergoing abortions first submit to an ultrasound and then be offered an opportunity to view the image.
The bill did not specifically mandate a vaginal ultrasound, but that would have been the effect in most cases because most abortions occur early in pregnancy, when the fetus is too small to be seen via abdominal ultrasound.
“Saturday Night Live” and late-night comics lampooned the measure, and amid the uproar, it was amended to require an abdominal ultrasound — although in most cases, the test will not produce an image. Then-Gov. Robert F. McDonnell (R) signed it into law.
Democrats have sought to repeal the law ever since, but they have been blocked by Republicans who narrowly control both chambers of the state’s General Assembly.
Democrats have used the episode to say that Republicans were waging a “war on women,” while Republican legislative leaders have sought to push abortion politics to the back burner.
The suit has the potential to raise the profile of abortion as an issue heading into midterm elections.