One of eight counts challenging Virginia abortion laws and regulations dismissed by Judge Hudson

By Dave Andrusko

Pro-abortion Virginia Attorney General Mark Herring

Back in June we first reported on a lawsuit filed by a coalition of pro-abortionists, represented by the Center for Reproductive Rights, Planned Parenthood, and the American Civil Liberties Union of Virginia, that contended five Virginia laws on abortion are “burdensome and medically unnecessary.”

The next month we reported that pro-abortion Virginia Attorney General Mark Herring (D) had filed a motion to dismiss the suit, probably because (as it was reported by the Richmond Times Dispatch) “House of Delegates Speaker Kirk Cox, R-Colonial Heights, had said he would consider hiring an outside lawyer in the case if Herring refused to take up the litigation on the state’s behalf.”

Later in July, Matthew R. McGuire, the deputy solicitor general for Virginia, filed a motion to dismiss the entire complaint which led to a ruling last week by a federal judge.

According to Frank Green of the Richmond Times-Dispatch

U.S. District Judge Henry E. Hudson dismissed the allegation that Virginia’s laws cumulatively impose an undue burden on Virginians’ access to abortion. Regarding two other counts, Hudson said the plaintiffs could challenge only the application of the laws in question, not their constitutionality.

The judge, however, denied a state bid to dismiss the remaining counts in a two-page order accompanied by a 23-page memorandum.

An ACLU attorney said she was “pleased with this outcome.”

A spokesman for the Virginia attorney general’s office, Michael Kelly, told Green that the ruling was “not an unusual outcome in a case like this where some claims will probably turn on questions of fact.”

The Times Dispatch added, “The next step is a large amount of discovery for both sides. To handle the expected large volume of work, an outside counsel, Hirschler Fleischer, has been hired by the state, Kelly said.”

As we reported in June, the litigants challenged what they contended were “overly burdensome statutes and regulations” that pose “a substantial obstacle to the provision of abortion services.”

The Jurist explained that the five laws being challenged included requirements that

1. second trimester abortions must be performed in a hospital;

2. abortions must only be performed by a physician;

3. medical facilities providing more than four first trimester abortions per month must undergo strict licensing requirements;

4. patients must undergo an ultrasound and counseling 24 hours before an abortion, requiring them to make two trips to a clinic; and

5. abortion is a class 4 felony if the requirements are not followed.

“Many of the challenged laws are decades old, some of the challenged regulations are under active review, and plaintiffs make powerful arguments that certain other requirements warrant reconsideration by the Virginia General Assembly,” wrote Deputy Solicitor General Matthew R. McGuire at the time. “But a federal courtroom is not the proper venue for debating the wisdom of these policies.”