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.