Henrico court ruling may impact Va. abortion clinics

Jeremy M. Lazarus | 2/1/2019, 6 a.m.
Abortion clinics in Richmond and across the state might have to spend millions of dollars to upgrade to hospital-level standards …

Abortion clinics in Richmond and across the state might have to spend millions of dollars to upgrade to hospital-level standards if a new Henrico County Circuit Court judge’s ruling stands.

The clinics gained a reprieve from the tougher standards as the result of a 2016 U.S. Supreme Court ruling overturning a similar Texas requirement that closed most clinics in that state. Because of the ruling, the Virginia Board of Health amended regulations in 2017 to drop tougher requirements that abortion clinics meet hospital standards.

At the time, abortion opponents said the tougher clinic rules were needed to ensure women’s safety and access for emergency personnel. But abortion rights advocates called the rules medically unnecessary and a politically motivated attempt to block women’s access to legal abortion by possibly forcing some clinics to close.

In addressing a challenge to the board’s amendments, Henrico Circuit Court Judge John Marshall ruled on Jan. 23 that the board violated state law in the amendment process. He also found that in representing the board, the Office of Virginia Attorney General Mark R. Herring failed to prove that the ruling in the Texas case applied to Virginia.

“The court does not have sufficient evidence before it to rule on the applicability of the (Supreme Court) decision in” Whole Women’s Health vs. Hellerstedt, Judge Marshall wrote, as he reinstated the tough requirements for clinics in Virginia.

Judge Marshall upheld eight amendments that went into effect in 2017, but he suspended 12 others.

He ruled that the Virginia Board of Health also had failed to follow a separate state law that sets the rules for public notice and public comment when a state agency moves to change existing regulations or create new ones.

The ruling appeared to be a rebuke to Mr. Herring, a Democrat who is running for governor in 2021. It also represented a victory for Daniel A. Carrell, a Henrico-based lawyer who represented the two women who challenged the board’s amendments, Itzel A. Melendez and Megan C. Getter.

“This decision re-establishes the rule of law,” Mr. Carrell said Jan. 25, after receiving the ruling. In his view, the ruling reinstates regulations aimed at ensuring the health and safety of women who secure abortions that he believes the Board of Health tried to extinguish.

Mr. Herring did not issue any public statement on the decision and has not indicated if he would appeal Judge Marshall’s ruling to the state Supreme Court.

Meanwhile, Gov. Ralph S. Northam issued a brief statement seeking to reassure abortion supporters that the decision would have little impact while restating his administration’s commitment to defend abortion rights.

“My commitment to ensuring reproductive health care access to women across Virginia remains steadfast,” Gov. Northam stated. “The Commonwealth anticipates minimal, if any, impacts.”

He noted that the state Department of Health has authority to temporarily issue variances to clinics so they would not have to comply, although state law and regulations state that temporary variances expire once the license does. Abortion clinics must apply yearly for a license to operate.