Hudson agreed in his opinion with a group of clinics and abortion rights advocates that “a consensus appears to have evolved” on the issue, making Virginia’s current medical requirements “unduly burdensome” and therefore unconstitutional.
It’s the first time a federal judge anywhere in the country has come to that conclusion.
“Virginia is the first one to really break ground here,” said Jenny Ma, an attorney at the Center for Reproductive Rights litigating the case. “It’s truly a landmark ruling.”
The 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.
Once the ruling takes effect, midwives, nurse practitioners, and physicians assistants with the proper training will be able to perform abortions in Virginia, Ma said. They are awaiting a final order from the judge on the date.
The state of Virginia argued unsuccessfully that there was a medical benefit to having physicians involved in all abortions and that the burden on patients and doctors was small.
“The aspiration procedure takes their physicians only about ten minutes to complete,” attorneys for the Virginia Department of Health argued in one motion. “A medication abortion requires even less physician time, and can be done via Skype — meaning that the physician does not have to be in the same room (or even the same city) as the abortion patient.”
Victoria Cobb, president of the conservative Family Foundation of Virginia, criticized the decision, saying in an email that “the abortion industry . . . wants to increase its profit margin by not having to pay for doctors.”
A trial is set for May 20 on 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, and stringent licensing standards for clinics.
The state Department of Health did not return requests for comment, and the office of Virginia Attorney General Mark R. Herring (D) declined to comment. Both are defending the current rules.
Until this year, abortion politics in Richmond had lingered in a state of quiet standoff. GOP leaders were eager to play down an issue that blew up on them in 2012, with a much-lampooned bill that would have required most women seeking an abortion to first undergo a transvaginal ultrasound. And Democrats seeking to expand access to the procedure saw their bills snuffed out in Republican-controlled committees.
Abortion was thrust back into the spotlight this year when freshman Del. Kathy Tran (D-Fairfax), pitching a bill to loosen restrictions on late-term abortions, said the measure would allow a woman to terminate a pregnancy until the moment she gives birth. Gov. Ralph Northam (D), a pediatric neurologist, added to the furor in a radio interview with comments that Republicans took as an endorsement of killing babies after delivery.
While Tran later said she “misspoke” and Northam called the infanticide charge “disgusting,” Republicans saw an opportunity to paint Democrats as extremists on the issue. Republicans plan to play up abortion as they seek to hold on to their two-seat majorities in the House and Senate in November’s legislative elections. All 100 seats in the House and all 40 in the Senate will be on the ballot.
This story has been updated to reflect that the ruling will not go into effect until the judge sets a date.