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Judge rescinds his own order allowing non-doctors to perform most abortions in Va.

Protesters wait for the Virginia Board of Health meeting on abortion clinic regulations in 2012.
Protesters wait for the Virginia Board of Health meeting on abortion clinic regulations in 2012. (Steve Helber/AP)

RICHMOND — A federal judge on Tuesday vacated his own order to allow non-doctors to perform most abortions in Virginia, saying the issue should be decided in an upcoming trial.

A week ago, U.S. District Judge Henry E. Hudson agreed with abortion rights groups that first-trimester abortions are simple and safe enough to be performed without a physician.

Granting a motion for summary judgment, he found that a Virginia law that requires doctors to perform the procedure “unduly burdensome” and therefore unconstitutional.

It was the first time a federal judge anywhere in the country had come to that conclusion. And he had second thoughts.

Non-doctors can perform first-trimester abortions in Virginia, federal judge rules

“On further review, the Court is of the opinion that summary judgment was improvidently awarded,” he wrote Tuesday. “Rather, on further consideration, whether the ‘Physicians-Only Law’ presents an undue burden to Virginia women who seek an abortion is a material fact that is genuinely in dispute.”

Both sides will have the opportunity make the case for or against the requirement when it goes to trial in Richmond next week.

Antiabortion groups hailed Hudson’s move, with the Family Foundation of Virginia calling it “nearly unprecedented.”

“We’re thrilled that Judge Hudson took this extraordinary step to reverse his earlier decision that jeopardizes women’s health,” Family Foundation President Victoria Cobb said in a written statement.

Olivia Gans Turner, president of Virginia Society for Human Life, said in a statement that her group “welcomes the action of Judge Hudson to reverse his own ruling, thereby respecting the laws in Virginia. It is critical that the state’s rights to pass such protective regulations regarding abortion be upheld.”

But Jenny Ma, lead counsel for the Center for Reproductive Rights, said she will press ahead with arguments next week that the requirement is medically unnecessary.

“There is overwhelming evidence that medical professionals other than physicians can safely and effectively provide abortion care,” she said via email. “We will be presenting this evidence at trial next week.”

Her group is challenging similar laws in Mississippi, Arizona, Kansas, Montana and Louisiana.

Hudson, a George W. Bush appointee, is best known for ruling in 2010 that the Affordable Care Act’s individual mandate was unconstitutional.

If Virginia’s law is ultimately struck down, midwives, nurse practitioners and physician assistants with the proper training would be able to perform abortions, Ma said.

The state of Virginia has argued that there is a medical benefit to having physicians involved in all abortions and that the burden on patients and doctors was small.

The May 20 trial will focus on the physicians-only requirement and three other abortion restrictions the advocates hope to see overturned: requirements that all second-trimester abortions be performed in a hospital and that patients wait 24 hours after getting an ultrasound to undergo an abortion, as well as stringent licensing standards for clinics.

The office of Virginia Attorney General Mark R. Herring (D), which hired outside counsel to defend the state’s current rules, declined to comment.

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