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Trial ends in case involving challenge to Virginia abortion laws; judge's ruling to come later

Attorneys presented their closing arguments Thursday in a case involving challenges to Virginia abortion laws, ending a trial after eight days of testimony over the past few weeks.

A lawyer for the plaintiffs told U.S. District Judge Henry E. Hudson on Thursday that the evidence shows the laws are unconstitutionally burdensome for women seeking abortions, and a lawyer representing state officials said the plaintiffs failed to prove the laws were substantial obstacles to abortions and unconstitutional.

The suit was filed a year ago 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.”

At the conclusion of several hours of argument on Thursday, Hudson said each side has two weeks to file briefs on what they believe the findings of fact and conclusions of law should be in the case. It is unknown when Hudson will rule on the case.

Laws under challenge include: a physician-only requirement barring nurse practitioners and physician’s assistants from performing abortions during the first trimester; a requirement that second-trimester abortions be performed in a hospital or licensed outpatient surgical hospital; and a requirement that women undergo an ultrasound and hear state-mandated information at least 24 hours before an abortion — requiring at least two trips to the provider.

Also being challenged is Virginia’s licensing scheme for abortion providers that the plaintiffs allege is “onerous” and that has no legitimate medical basis. The law “singles out” facilities where five or more first-trimester abortions are performed per month.

Jenny Ma, a lawyer representing the Center for Reproductive Rights, outlined the plaintiffs’ case for an hour and a half Thursday and asked Hudson to rule the laws unconstitutional and to issue a permanent injunction barring their enforcement.

Ma argued that the overwhelming evidence showed that the burden created by the Virginia laws — particularly for poor and low-income patients — far outweighs any benefits they might confer.

She said medically unnecessary state laws take aim at abortion providers and their patients, making it difficult and sometimes impossible to get safe abortion care.

Ma argued that licensing requirements for providers are unnecessary because they are already subject to numerous state and federal regulatory requirements.

There are much more medically risky procedures, such as colonoscopies and plastic surgeries, performed in physicians’ offices for which the state does not require oversight by the Virginia Department of Health.

“There simply is no medical or logical reason to single out abortion,” Ma argued.

Emily Munro Scott, with the law firm of Hirschler Fleischer PC, retained by the Virginia attorney general’s office to defend the laws, countered that more is required than simply showing a law is more burdensome than beneficial.

It must be a “substantial obstacle” to abortion to be unconstitutional, she said. “It’s not a simple balancing test,” she told Hudson. “Not one of the laws that were challenged in this case impose an unconstitutional burden,” she said.

Among other things, Scott said ultrasounds are the best way of determining the age of gestation and requiring a waiting period is a sound policy. She said 27 states have a mandatory waiting period, some up to 72 hours. Scott argued states are permitted to express a preference for birth over abortion.

Scott said some provisions of law might be inconvenient, “but inconvenience is not an unconstitutional burden.” Scott also complained to Hudson that the plaintiffs did not present testimony from any Virginia woman who sought an abortion to which state law was an obstacle.

Hudson said the difference between what is inconvenient and what is burdensome is a key issue and asked each side to explain the difference.

Scott said all medical care could be considered inconvenient. Ma told Hudson that the plaintiffs’ evidence in many ways mirrors what courts have found to be burdensome.

Ma also said that because of the confidentiality surrounding abortions and other issues, “we have told patients’ stories through the providers who know them best.”

Last month, Hudson tossed out the physician-only requirement on a pretrial motion but then later rescinded his ruling, saying he wanted to hear more evidence during the trial.


THE ASSOCIATED PRESS  

ABOVE: Officials including U.S. House Speaker Nancy Pelosi, French Prime Minister Edouard Philippe, Canadian Prime Minister Justin Trudeau, U.K. Defence Secretary Penny Mordaunt and Dutch Defence Minister Ank Bijleveld stood at attention during a ceremony Thursday on Juno Beach in Courseulles-sur-Mer, France, as part of D-Day commemorations marking the 75th anniversary of the World War II Allied landings.

AT RIGHT: World War II veteran John Hefty saluted as the national anthem played during Thursday’s commemoration at the National D-Day Memorial in Bedford.


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Crime
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Hanover teen found dead after swimming in abandoned quarry remembered as 'adventurous and fearless'

Authorities on Thursday recovered the body of a Hanover County teenager last seen swimming with friends Tuesday in an abandoned quarry near Schuyler in southern Albemarle County.

Patrick Morin said an Albemarle police detective called him shortly before noon and told him that his 18-year-old son, Henry Christian Morin, had been found. The Patrick Henry High School senior would have graduated June 15, on his 19th birthday, his father said.

“My son died living the way he lived his life — adventurous and fearless,” his father said in a phone interview.

Albemarle police had been searching for the Doswell teen since Tuesday. The police were summoned to assist fire and rescue personnel about 6 p.m. that day in the 8700 block of Schuyler Road, near the road’s intersection with Quarry Hill Lane.

Patrick Morin said a diver located his son on Thursday.

“He was brought up to the surface by somebody’s arms,” he said, his voice shaking.

County officials confirmed that members of the Virginia State Police Search and Recovery Team recovered the body.

The cause of death is under investigation by Albemarle police and the Office of the Chief Medical Examiner.

The area where Morin had been swimming was the center of soapstone mining from the late 1890s throughout the 20th century. The activity left several deep quarries with ponds that can be 45 feet deep or deeper.

Patrick Morin said his son and some friends had gone swimming after a senior picnic.

“They wanted to go out on an adventure,” Patrick Morin said. “He was always adventuring.”

He said his son, an Eagle Scout, had his motorcycle license, scuba diving certification and was about 10 hours away from his pilot’s license. Henry Morin also was planning to study aeronautical engineering at the University of Colorado Boulder.

He had recently designed and built a drone.

“He loved to build anything,” said his close friend Cam Boxley. “He loved working on cars. We loved talking about cars. He loved Subarus.”

“He’s so kind; he’s so smart; he’s so generous,” Patrick Morin said. “He’s like one of these remarkable people.”

Hanover school officials expressed deep sadness about the tragedy and informed parents that extra school counselors and other support are available for students.

“There are truly no words that can fully express how much we will all miss Henry,” Chris Martinez, principal of Patrick Henry High School, wrote Thursday in a message to parents. “His life ended way too soon.

“However, Henry will always be a part of the PH family. We will always remember him as a remarkable young man with a smile that brightened up the room and always made others feel welcomed. For those of you who did not know Henry, we ask for your understanding and patience as we deal with this heartache.”

A visitation is planned for 11 a.m. Monday at St. Michael’s Catholic Church, 4491 Springfield Road in Glen Allen. The service will be held at noon, with a reception to follow. The family plans to have him cremated.

“I don’t think we’re going to bury him,” his father said. “He was too much of a free spirit.”

In addition to his father, Henry Morin is survived by his mother, Kate Connolly, and two brothers, Andrew, a 20-year-old cadet at Virginia Military Institute, and William, a 15-year-old student at Patrick Henry High School.


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Company challenges Virginia's medical cannabis licensing process, accuses state board of violating FOIA

A company that filed an appeal after it was denied one of Virginia’s five medical cannabis licenses, accusing the state board of making an unfair decision after a process cloaked in secrecy, will have its case heard Friday in Henrico County Circuit Court.

New Age Care, an LLC registered in Roanoke, filed the appeal in Henrico earlier this year, saying its application scored higher than the one filed by Dharma Pharmaceuticals, the Bristol company that last year was awarded the only dispensary permit available in Southwest Virginia.

The appeal asks the court to overrule the Virginia Board of Pharmacy’s decision to grant the license to Dharma and give the license to New Age instead. In its filing, New Age argues that the pharmacy board’s process was so opaque and unintelligible it produced an “arbitrary and capricious” result.

“The Board has not released the applications it considered or any explanation for why New Age was denied a conditional permit despite outscoring Dharma Pharmaceuticals by a significant margin,” lawyers for the company said in the appeal filed Feb. 21. The dispute underscores the intensity of the competition among companies trying to get in on the ground floor of Virginia’s emerging medical cannabis industry, as well as the frustration of losing applicants who felt they were given little to no insight into how the state reviewed their paperwork, which required a $10,000 filing fee.

Dharma and Caroline Juran, the executive director of the pharmacy board, have asked that the appeal be dismissed, saying New Age can’t point to any flaws in the process that would justify a court overruling the board’s authority. New Age’s appeal, Dharma attorneys wrote, relies on the “erroneous premise” that the board was required to give licenses to the highest scorers. In a denial letter sent to New Age late last year, the pharmacy board said the company’s proposal lacked detail about its security plans, training for employees and educational outreach to patients.

“This Court cannot substitute its judgement for that of the Board, which did exactly as it should have: it carefully deliberated the merits of the respective applications ... and awarded conditional approval to the applicant it deemed best,” Dharma’s attorneys wrote in their motion to dismiss the appeal. Dharma has retained attorneys from Roanoke-based Gentry Locke and the Richmond office of Cozen O’Connor.

In its order awarding the license to Dharma, the pharmacy board noted that the Bristol location would be “readily accessible to a large population of potential patients” and that the company had solid finances, expertise and a “strong compassionate need plan.” Dharma’s lawyers said the Bristol location would better serve far Southwest Virginia, while patients in the Roanoke region could easily travel to a dispensary approved in Staunton.

Several other applicants that didn’t receive licenses filed appeals that have already been dismissed. New Age’s case is being handled by a team of McGuireWoods lawyers that weren’t involved in the other appeals.

New Age’s appeal includes little information about the company itself, but other public records suggest the Virginia LLC, which was created last year, is connected to an out-of-state cannabis venture. Despite the legal challenge, Dharma is moving ahead with its dispensary in Bristol.

“Dharma has invested in its site at the Bristol Mall property, continues to make significant progress toward the manufacturing and distribution of medical cannabis and looks forward to serving the patients of the region,” Dharma attorney Jerry Kilgore said in an email.

Last year, the pharmacy board received 51 applications for five permits that will allow companies to run dispensaries offering CBD and THC-A products, two medical forms of cannabis that don’t produce the same intoxicating highs of marijuana. Under legislation approved by the General Assembly, the board could grant up to five licenses, one for each of the state’s five health service areas.

The board announced the winning companies last October after several closed-door meetings, but refused to release records showing how each company scored. The pharmacy board is not required to release the records because medical licensing processes are exempt from the state’s Freedom of Information Act.

Dharma’s plan for a dispensary in the former Bristol mall has collided with plans for a casino resort in the same building, prompting the company to return to the pharmacy board and ask for permission to build in a different location to avoid mixing medical marijuana and gambling under the same roof. The board denied that request, but it left some observers wondering how Dharma prevailed over nine competitors for the Southwest Virginia license without having its site nailed down.

The scores were based on a variety of criteria, including the applicant’s financing, marketing plans, security measures and location. In three other health service areas, the licenses were awarded to the company that received the highest scores from a review committee created by the pharmacy board. In the two others, the license did not go to the top scorer. But New Age argues the gap between its score and Dharma’s score seemed particularly unusual.

The appeal notes that pharmacy board member Kristopher Ratliff, a Marion pharmacist, had written a letter of recommendation for Dharma before he was appointed to the board last June. Ratliff disclosed the issue and said he would recuse himself from the process.

New Age’s lawyers have asked the court to allow them to depose pharmacy board members. State lawyers representing the pharmacy board have opposed the push for more documents and testimony, arguing New Age has shown no evidence of bias.

“It appears that the motion is merely a pretext to cross-examine Board members and committee members hoping to find such evidence,” wrote attorneys from Attorney General Mark Herring’s office. The appeal also notes that the board approved Dharma’s application separately from the four other winners. Two board members abstained from the 7-0 vote on Dharma’s license award after approving the four other licenses in a bloc vote. State lawyers called the separate votes a matter of “parliamentary efficiency.”

The New Age appeal also accused the board of violating Virginia’s open-meetings law by citing “irrelevant” justifications for going into closed session to discuss the applications. The board cited a Freedom of Information Act exemption for discussion of prospective business moves “where no previous announcement has been made.”

Dharma’s attorneys said the board could not have discussed the applications in public without revealing the companies’ proprietary information. Even if the pharmacy board’s closed-session procedure were deemed improper, they said, it had no impact on the outcome.

A pharmacy board spokeswoman declined to comment.


Crime
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90 arrested in Richmond, Tri-Cities during weeklong gang enforcement operation by the U.S. Marshals

Federal authorities teaming with police in the Richmond and Tri-Cities region arrested 90 people on 280 charges during a weeklong enforcement operation that targeted gang members, violent offenders and fugitives, the U.S. Marshals Service announced Thursday.

“The goal was to take off the streets any gang member or suspected gang member that was wanted for anything,” said Kevin Connolly, a supervisory inspector with the U.S. Marshals Service and leader of the Capital Area Regional Fugitive Task Force.

The effort, dubbed Operation Washout and led by the Marshals, was designed to “go after these gangs that are causing problems” in the Richmond and Tri-Cities area, Connolly said.

About 80 officers in five teams fanned out across the region May 20-24 and arrested wanted criminals, about half of whom were members or suspected members of such gangs as the Bloods, Crips, Gangster Disciples, Pagans, Hells Angels, Aryan Brotherhood, Ward Boyz, Willow Boyz, Stain Gang, Chippenham Money Makers, Juggalos and 5th Ward Gang, Connolly said.

Those arrested with drug and/or gun evidence were debriefed about what they may know about gang, drug or gun activity and murders in the region. “Every single person was asked those questions and several of them came forward,” Connolly said. “We were able to get some valuable intelligence on some of these high-profile crimes in the region.”

Of the 90 arrested, 22 were documented gang members and six were wanted on murder-related charges. The murder suspects included two brothers wanted in a double killing in Hopewell, and two men being sought in the robbery and slaying of a Richmond man in his Fan District home.

The operation also resulted in the seizure of 54 grams of heroin as well as cocaine, Oxycontin pills and marijuana. Police also recovered six firearms that included two 9 mm pistols, one .380-caliber pistol, a .22-caliber pistol, a .410 sawed-off shotgun and a 7.62-caliber pistol, which authorities described as an AK-47-type firearm.

“What the Richmond Police Department and other jurisdictions liked about this, is in the communities everyone saw those law enforcement officers working together and removing these folks,” Connolly said. “And I think we even gained a few [unanticipated] surrender arrests as a result of this, because they thought that we were coming after them.”

The U.S. Marshals have a national program that targets gang fugitives in certain cities across the nation, and authorities took a look at Richmond and surrounding localities to see if it could be beneficial here, Connolly said.

In December, the Marshals met with the U.S. Attorney’s Office in Richmond as well as local police agencies and all agreed to proceed with the initiative to go after more than 100 people wanted in the area, mostly for drugs, violent crimes and sex offenses, Connolly said. The Marshals then deputized state and local law enforcement officers after providing them tactical training.

Nick Proffitt, U.S. Marshal for the Eastern District of Virginia, said in a statement that the operation “is a testament to the level of cooperation between the individuals and the leadership from each of the participating agencies.”

In addition to the Marshals Service, agencies included the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives; Virginia State Police; Virginia Department of Corrections; Richmond police; Chesterfield County police; Chesterfield Sheriff’s Office; Henrico County police, Hanover County Sheriff’s Office; Petersburg police; Hopewell police, Colonial Heights police; the U.S. Attorney’s Office for the Eastern District of Virginia; and the Richmond Commonwealth’s Attorney’s Office.

Operation Washout

Taylor Irby 

WWII Veteran John Hefty salutes during the National Anthem at the The National D-Day Memorial Thursday, June 6, 2019 during the 75th anniversary of D-Day event in Bedford, Va. (Taylor Irby/The News & Advance via AP)


Plus
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Del. Debra Rodman's run for Senate boosts her role in the Democratic Party. But it came at a cost.

Del. Debra Rodman, D-Henrico, upset a 17-year Republican incumbent in 2017 as a concerned citizen running for office.

Del. John O’Bannon, the Republican she toppled, outspent her and she didn’t get much backing from the Democratic Party in her 894-vote win.

Rodman’s win was part of a wave election that flipped 15 GOP-held seats in the House of Delegates, and she did it with the help of citizen-activists motivated by their shock at Donald Trump’s election to the presidency — folks who weren’t involved in politics prior to the 2016 presidential election.

Rodman is now running in a state Senate primary Tuesday against fellow Democrat Veena Lothe — whose family knocked on doors and helped rally Indian American votes for Rodman in 2017 — in Senate District 12 for the chance to take on Sen. Siobhan Dunnavant, R-Henrico, in November.

Rodman has the implicit backing of Gov. Ralph Northam and a campaign contribution from U.S. Rep. Abigail Spanberger, D-7th, and the congresswoman’s husband, Adam, who live in Henrico, as well as an assurance that Northam’s political operation can funnel $1 million of what she’d need in the general election.

But her primary run came at a cost: Some of her close confidantes, the new, volunteer citizen-activists who helped her win in 2017, are no longer on Team Rodman and are backing Lothe, a civil rights and immigration lawyer whose parents were Indian immigrants.

Three of Rodman’s former inner circle gave a statement to the Richmond Times-Dispatch expressing concerns about how the top levels of Democratic power in Virginia intervened in the primary to give Rodman a boost against Lothe, who had been running for over a year when Rodman announced her primary run in March, weeks before the filing deadline.

Among the concerns from Tara Douglas, Melissa McKenney and Laura Pho: Rodman’s run for Senate means she is giving up the 73rd House District seat they had worked so hard to flip and raises questions about whether the party is willing to push aside candidates of color for a candidate deemed more electable.

“Constituents want to drive how the government, policy, and our communities are shaped,” the statement said. “The party and big donors shouldn’t be picking the candidate without regard to the wants and needs of the community.”

Rodman declined to respond to the concerns of her former supporters, but issued a written statement saying she’s basing her Senate campaign on her momentum as a delegate.

“In 2017, I decided to run because I was represented by a delegate who opposed our ability to access affordable, quality health care. I won my race against all odds and have since expanded Medicaid and raised teacher pay,” Rodman’s statement said.

“My race for Senate has built on that momentum on the campaign trail and in the General Assembly. I think folks are excited because they know I run a strong grassroots campaign and I’ve proven myself to be an accessible and strong representative of their values.”

According to the statement from Douglas, McKenney and Pho, Rodman summoned eight of her supporters to Pho’s house on Feb. 12 to get advice about whether to join the Senate primary. Five of the eight had concerns about the idea. “Of the remaining 3 advisory participants, one did not respond with feedback during the meeting and two others who did express support were not actively engaged in the campaign or organizing prior to the meeting,” the statement said.

Pho had brought Rodman into a “resistance” group after the 2016 election. When Rodman began considering a run for delegate, discussions were held from Pho’s couch with a small group. In helping Rodman run, Pho wrote speeches and helped coordinate Rodman’s election-night party.

During the Feb. 12 meeting, Rodman told the group that Northam’s PAC, The Way Ahead, said $1 million would be lined up for Rodman’s run against Dunnavant, according to the statement.

Rodman told them she initially declined, but then later told Mark Bergman, the PAC director, that she would consider running, but wanted to be sold on it.

In the meeting, McKenney revealed to Rodman that Bergman had also asked her if she’d be interested in running and cited the same dollar figure, saying party brass were looking for someone like Spanberger.

McKenney was not interested in running.

Northam’s PAC

With significant power over where big donor money will flow, Bergman is on the top level of what the Democrats call their “coordinated campaign” for the fall, which includes Northam’s PAC, the House and Senate Democratic caucuses, and the Democratic Party of Virginia.

The PAC also arranged for a research firm to do polling, the results of which were shared with Rodman.

Some of the women brought up the optics of a white candidate joining a primary against two people of color at a late date, particularly in light of the governor’s blackface scandal. Marques Jones, who is currently running for the Henrico County Board of Supervisors, was also a candidate at the time.

“These candidates had established campaigns with grassroots support,” the statement said.

Rodman’s former inner circle didn’t just knock doors, recruit volunteers or drive Rodman to events. Douglas, for example, did things like taking Rodman’s young sons to lunch so Rodman and her husband could campaign at the April caucus which decided the nominee.

Candidates’ focus

Rodman has kept a positive focus during her race. Her campaign has more than 150 volunteers who have knocked 15,000 doors.

Peggy Borgard of Henrico, a Rodman supporter from Henrico who is making phone calls for her campaign, said Rodman’s work experience makes her a great lawmaker.

“She is a such a unique person with an incredible variety of experiences and qualifications,” Borgard said. “She’s an anthropologist. She’s an expert on Latino immigration and speaks fluent Spanish. She’s an expert on immigration and asylum. People hire her as an expert witness.”

Rodman and Lothe, both progressives on issues, made pitches to voters on Wednesday evening at a forum at University of Richmond sponsored by the Henrico County Democratic Committee.

Lothe said gun violence is the most important issue for the state; Rodman said abortion rights.

Rodman, an anthropology professor at Randolph-Macon College, highlighted her experience as an expert in federal immigration proceedings to assist people fleeing violence.

“My life’s work has been about making the American dream accessible, for women, for students, for the most vulnerable communities in the world,” Rodman said.

“We need to work together to make sure that we get the majority, because if we get the majority — and we can this year — we will make a difference in the lives of everyday Virginians. True differences. I am relentless campaigner. I am a relentless, hardworking person for my constituents in the 73rd District, and I look forward to proving that in the 12th state [Senate] district.”

Lothe said she was excited to learn that there were people at one of her campaign events who spoke a total of 20 different languages.

“We are bringing together diverse elements of people from all across the county, and we are forming a coalition that will not only help us win elections this year but in five years and 10 years,” Lothe said.

Each candidate said they would support the other if the other won the nomination. They hugged at the end of the forum.

In an interview afterward, Lothe said she has run a focused and positive campaign but was frustrated by the party’s thumb on the scale.

“I think that primaries are a good thing when the candidates appear naturally, organically, they decide to run because they’re part of the community or they really want to make a change,” Lothe said. “What’s frustrating to me is when there’s a sense of a puppet master trying to figure out who’s the best candidate.”

Bergman, Northam’s PAC director, said the governor has stayed out following early discussions with Rodman.

Jones, the former 12 District primary candidate who now is backing Rodman, said he was disappointed when Rodman announced. But a primary is the process that decides the strongest candidate, he said.

“If I’m living up to my principles and I really want to make a change then it can’t be just about me. It’s got to be about winning the race — winning in November,” Jones said. “You don’t have a monopoly on the nomination just because you got in first.”

Dunnavant, an OB-GYN whose slogan is “Dunnavant Delivers,” is one of four siblings in elected office. She won the Senate seat in 2015 with nearly 58 percent of the vote.


H. Morin