Federal Judge Upholds Two Virginia Pro-Life Laws; Strikes Down Two Others

A federal court has upheld two Virginia laws regulating abortion, but also struck down two others.

District Judge Henry Hudson, a President George W. Bush appointee, approved the Commonwealth’s new ultrasound law, which requires an abortion-minded woman to receive an ultrasound at least 24 hours prior to having an abortion. The other law approved by Judge Hudson requires that only licensed physicians perform the procedure.

The two laws struck down included one that required abortion clinics performing early abortions to conform to safety and medical standards appropriate to surgical hospitals, and another that required clinics performing second-trimester abortions to meet the safety and medical standards of licensed outpatient hospitals.

“At issue,” stated Hudson referring to the holding of Planned Parenthood v. Casey, “is whether Virginia statutes and regulations unduly burden the right of Virginia women, under the Fourteenth Amendment, to choose to have an abortion.”

Two laws upheld, and two struck down. Does the decision constitute a glass half-full, or a glass half-empty?  One pro-life leader enthusiastically supports the optimistic view.

Victoria Cobb is the President of The Family Foundation, a Virginia organization affiliated with Focus on the Family. She said, in an interview with the Washington Post, that the ruling is a “near-total repudiation of the abortion industry’s baseless claims” and a victory for “common-sense measures to protect women’s health, safety, and ensure their fully informed consent before making an irreversible decision to end the life of their unborn child.”

The abortion centers that filed the original lawsuit against the laws consider all abortion regulations as unnecessary. “Virginia has adopted,” the Complaint states, “an array of unnecessary and discriminatory laws, some over four decades old, that target the provision of abortion care without any meaningful improvement to safety or health, or any other benefits—let alone benefits that outweigh burdens. Instead, these laws serve only to negatively impact Virginians’ access to reproductive healthcare.”

The judge disagreed, at least with respect to the two laws he upheld. Citing Supreme Court abortion rulings, he noted the state does have an interest in protecting “potential life”* and in protecting the health and safety of women.

Unless and until the Supreme Court reverses Roe and Casey and related cases, there will continue to be this type of judicial balancing of the supposed woman’s interest in aborting her child against the state’s interests in supporting life and protecting women’s health.

The last major abortion decision from the Supreme Court involved abortion regulations in Texas. In the 2016 Whole Woman’s Health v. Hellerstedt case, the court used the same balancing test to strike down similar regulations designed to protect the health and safety of women. The court, though, noted that its decision was heavily dependent on the specific impacts of the law in Texas, leaving open the very real possibility that other states with similar laws might succeed in defending legal challenges based on the unique local circumstances in each case. 

And times have changed. In 2016, when Hellerstedt was decided, Justice Anthony Kennedy was still on the court and ruled against Texas law in that 5-3 decision. At the time the Court was short-handed due to the recent death of Justice Antonin Scalia. Today, Justices Neil Gorsuch and Bret Kavanaugh, both appointed by President Trump, join with Chief Justice John Roberts and Associate Justices Clarence Thomas and Samuel Alito to form what is expected to be a more conservative court in terms of judicial philosophy. That expectation has yet to be tested in the abortion context.

However, other abortion-related cases could hit the Supreme Court docket this year. An appeal from Louisiana challenges that state’s attempt to pass laws similar to the failed Texas law and the two Virginia laws that were struck down. If the appeal is accepted, the outcome in the Louisiana case could signal a possible shift in the Court’s abortion jurisprudence.

For now, though, Virginia’s two new laws could help change women’s minds concerning abortion, save preborn lives and protect women. That’s worth celebrating, as we continue to pray for the greater victory for life in the courts, as well as winning hearts and minds to the pro-life position in legislatures and in the culture.

*note: The term “potential life” comes directly from the 1973 Roe v. Wade opinion. Justice Blackmun, who wrote the majority opinion in Roe, dodged the question of what constitutes “life.”