Federal Judge Upholds Abortion Waiting Period in Virginia

RICHMOND, Va. (CN) – After a federal judge upheld several controversial Virginia abortion laws including a 24-waiting period, pro-abortion rights advocates say there is still much work to be done in eliminating obstacles for access to the procedure.

(AP Photo/Jeff Roberson)

“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” Senior U.S. District Judge Henry Hudson wrote in the opening of his 67-page ruling issued Monday.

“However, the Supreme Court has also recognized that ‘abortion is a unique act,’ and one that is ‘fraught with consequences’…As a result, the right to choose to have an abortion is not unfettered,” he continued.

To that end, Hudson, a George W. Bush appointee, upheld a Virginia law requiring a 24-hour waiting period before an abortion, as well as mandatory ultrasounds and a “physician-only rule” that says only doctors can perform the procedure.

“While the decision to undergo an abortion procedure is deeply personal, respect for potential life, along with the health and welfare of women seeking an abortion, are also cardinal considerations,” Hudson wrote. “This Court’s resolution of these controversial issues is guided by these firmly enshrined tenets.”

However, the judge struck down a state law requiring second-trimester abortions to be performed in licensed outpatient hospitals and also overturned rules that required abortion clinics to meet the same facility requirements as hospitals.

Hudson said these provisions “present a substantial obstacle to women seeking an abortion and impose an undue burden on that right, in violation of the due process clause of the Fourteenth Amendment.”

All of the challenged laws were passed in 2013 when Republicans still had majority control of the governor’s mansion and both legislative chambers. The anti-abortion effort in Virginia mirrored similar pushes in other states at the time, with about half of the country passing Targeted Regulation of Abortion Providers, or TRAP, laws aiming to limit access to the procedure.

Victoria Cobb, president of the Family Foundation of Virginia, a statewide anti-abortion group, hailed the judge’s decision but still expressed concern for the laws that were nixed.

“Once again the $1 billion abortion industry has failed in its zealous effort to erase all of Virginia’s common-sense pro-life laws in the name of profit,” Cobb said in an statement after the decision was handed down. “While this decision is positive for unborn life and women in many ways, it is disappointing that some parts of the judge’s decision blurred the lines between surgical and chemical abortions in a way that may jeopardize the health and safety of women.”

Pro-abortion rights advocates offered only soft applause for Monday’s ruling.

“This decision opens the door to expanding abortion access in Virginia, but it also shows how much work still needs to be done,” said Jenny Ma, senior staff attorney with the Center for Reproductive Rights. “Virginians will continue to unnecessarily face serious obstacles to abortion access under these burdensome laws under the guide of protecting patient health, which in reality, only work to decimate access to care.”

The case was argued in Richmond earlier this year by the Los Angeles-based O’Melveny and Myers LLP with support from the state chapter of the American Civil Liberties Union.

The 2013 passage of TRAP laws in Virginia launched a firestorm of local activism with large demonstrations at the doorstep of then-Republican Governor Bob McDonnell. The activism – along with the election of President Donald Trump who continues to be deeply unpopular in the state – has helped Democrats win statewide elections ever since and put both legislative branches within reach for the first time in almost two decades.

While a February Washington Post-Schar School poll found abortion was a top issue to almost two-thirds of Virginians, their interest in changing the laws hovered around 20%. Still, a majority believed the procedure should be available through the third trimester if the woman’s health is at risk.

Stephen Farnsworth, director of the Center for Leadership and Media Studies at University of Mary Washington, said Monday’s ruling will put abortion access back in the limelight for the upcoming statewide elections.

“When you’re trying to get people to turn out [to vote], talking about a policy issue that would make them angry is one of the best strategies out there,” Farnsworth said in a phone interview. “And now both sides have something to work with.”

All 140 state legislative seats are up for grabs Nov. 5.

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