Judge upholds Virginia’s 24 hour waiting period, ultrasound, and physicians-only requirements

By Dave Andrusko

U.S. District Judge Henry E. Hudson

Proving once again you never know what judges will do, on Monday U.S. District Court Judge Henry Hudson upheld three important Virginia laws— that women have an ultrasound and counseling 24 hours before an abortion; and the requirement that only a licensed doctor may perform abortions.

In his 67-page decision, Judge Hudson struck two other provisions. One required non-surgical second-trimester abortions up to the point of viability to be performed in a hospital. The second required medical facilities providing more than five or more first trimester abortions per month to undergo strict licensing requirements.

Judge Hudson’s turnaround on the physicians-only requirement is just short of remarkable. As NRL News Today reported back in May, in an unprecedented decision, Judge Hudson ruled that Virginia’s law requiring doctors to perform most abortions was “unduly burdensome” and therefore unconstitutional.

As the Washington Post’s Laura Vozzella wrote at the time, “It was the first time a federal judge anywhere in the country had come to that conclusion.” But then she added, “And then he had second thoughts.”

Reversing course, Judge Hudson wrote, “On further review, the Court is of the opinion that summary judgment was improvidently awarded,” adding, “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.”

In other words, Hudson, who heard the case without a jury, would listen to evidence rather than blindly follow the lead of the abortion lobby. For example, in his opinion Hudson wrote

several of the physician witnesses described serious complications that can arise in the later stages of second trimester abortions, amply justifying the requirement of Va. Code Ann. § 18.2-72 that only physicians perform second trimester abortions.

Olivia Gans Turner, president of the Virginia Society for Human Life said “VSHL is pleased that U.S. District Court Judge Henry Hudson has upheld Important Life saving aspects of the laws in Virginia regarding abortion regulations. The ruling recognizes the importance of Virginia’s reasonable and protective laws, including the 24 hour waiting period, the ultrasound law and the requirement that only a licensed doctor may perform abortions. Each one of these laws protects women and their babies.”

With respect to the physicians-only requirement, Gans Turner noted that Judge Hudson’s ruling “recognizes the very real danger to the safety of women obtaining abortions if untrained individuals are allowed to do abortions. Even in the early stages of pregnancy abortions have very serious possible risks, including perforation of the uterus, injury to the cervix, hemorrhaging and life threatening infection. “

Laws such as the requirement for an ultrasound requirement and a 24 hour waiting period “provide women with critical information about their unborn child and time to reconsider the irreversible decision they might be about to make for themselves and their child,” Gans Turner told NRL News Today.

“The ruling stems from a suit filed last year by the Center for Reproductive Rights, Planned Parenthood Federation of America, the law firm O’Melveny & Myers, and local counsel for the ACLU of Virginia on behalf of the Falls Church Healthcare Center, the Whole Woman’s Health Alliance, the Virginia League for Planned Parenthood and ‘Dr. Jane Doe,’” explained Frank Green of the Richmond Times-Dispatch.

The outcome shows the wisdom of the Virginia legislature in pushing the Attorney General’s office to securing outside counsel to defend their laws. The state Attorney General is unabashedly pro-abortion.

“The law firm Hirschler Fleischer PC, retained by the Virginia Attorney General’s Office to defend the laws, countered that more is required than simply showing that a law is more burdensome than beneficial. It must be a substantial obstacle to abortion to be unconstitutional, and none of the laws challenged in this case impose an unconstitutional burden,” Green wrote. “Among other things, the defense said that ultrasounds are the best way to determine the age of gestation, requiring a waiting period is a sound policy and 27 states have one, and states are permitted to express a preference for birth over abortion.”

Reading through the opinion, you find Judge Hudson writing in his first paragraph that “For more than five decades, the Supreme Court has recognized that within the right to privacy exists a woman’s right to make decisions regarding the circumstances surrounding when and with whom she will bear a child — or whether she chooses to bear a child at all.”

But, in the very next paragraph, Hudson is observing,

However, the Supreme Court has also recognized that “[a]bortion is a unique act,” and one that is “fraught with consequences … for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; [ and] for the spouse, family, and society which must confront the knowledge that these procedures exist …. “

Hudson immediately adds,

“As a result, the right to choose to have an abortion is not unfettered. In addition to a woman’s personal liberty interest, the state has profound interests in protecting potential life and protecting the health and safety of women. The state, therefore, may take measures to further these interests so long as it does not create a substantial obstacle that unduly burdens a woman’s right to choose.”

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