Falls Church Med. Ctr., LLC v. Oliver

• Decision Date: 30 September 2019
• Docket Number: Civil Action No. 3:18cv428–HEH
• Citation: 412 F.Supp.3d 668
• Parties: FALLS CHURCH MEDICAL CENTER, LLC d/b/a Falls Church Healthcare Center, et al., Plaintiffs, v. M. Norman OLIVER, Virginia Health Commissioner, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

412 F.Supp.3d 668

FALLS CHURCH MEDICAL CENTER, LLC d/b/a Falls Church Healthcare Center, et al., Plaintiffs,

v.M. Norman OLIVER, Virginia Health Commissioner, et al., Defendants.

Civil Action No. 3:18cv428–HEH

United States District Court, E.D. Virginia, Richmond Division.

Signed September 30, 2019

Daniel Sean Trainor, Brian Patrick Quinn, O'Melveny & Myers LLP, Alice Clapman, Pro Hac Vice, Hannah Swanson, Pro Hac Vice, Planned Parenthood Federation of America, Washington, DC, Gail Marie Deady, Amy Myrick, Pro Hac Vice, Jenny Suhjin, Ma, Pro Hac Vice, Michelle Katz Moriarty, Pro Hac Vice, Rabia Muqaddam, Pro Hac Vice, Center for Reproductive Rights, Nathaniel Asher, Pro Hac Vice, Leah Godesky, Pro Hac Vice, O'Melveny & Myers LLP, Jennifer Sandman, Pro Hac Vice, Planned Parenthood Federation of America, New York, NY, Eden Brooke Heilman, Nicole Gloria Tortoriello, American Civil Liberties Union of Virginia, Richmond, VA, Kristin M. MacDonnell, Pro Hac Vice, O'Melveny & Myers LLP, San Francisco, CA, for Plaintiffs.

Toby Jay Heytens, Office of the Attorney General, Courtney Moates Paulk, Emily Munro Scott, Jaime Brett Wisegarver, Hirschler Fleischer PC, Richmond, VA, John Patrick O'Malley, Hirschler Fleischer PC, Tysons Corner, VA, for Defendants.

MEMORANDUM OPINION

(Post-Trial Judgment)

Henry E. Hudson, Senior United States District Judge

I. INTRODUCTION

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. See, e.g., Planned Parenthood of S.E. Pa. v. Casey , 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ; Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ; Eisenstadt v. Baird , 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) ; Griswold v. Connecticut , 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). In the landmark decision of Roe v. Wade , the Supreme Court established that women have a "fundamental right grounded in the Fourteenth Amendment to end a pregnancy by aborting the life of the fetus." Greenville Women's Clinic v. Bryant , 222 F.3d 157, 165 (4th Cir. 2000) (citing Roe , 410 U.S. at 153-56, 93 S.Ct. 705 ). That right "involv[es] the most intimate and personal choices a person may make in a lifetime," choices that are central to the individual autonomy and liberty protected by the Fourteenth Amendment. Casey , 505 U.S. at 851, 112 S.Ct. 2791.

However, the Supreme Court has also recognized that "[a]bortion is a unique act," and one that is "fraught with consequences ... for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; [and] for the spouse, family, and society which must confront the knowledge that these procedures exist ...." Id. at 852, 112 S.Ct. 2791. As a result, the right to choose to have an abortion is not unfettered. In addition to a woman's personal liberty interest, the state has profound interests in protecting potential life and protecting the health and safety of women. Id. at 878, 112 S.Ct. 2791. The state, therefore, may take measures to further these interests so long as it does not create a substantial obstacle that unduly burdens a woman's right to choose. Id.

At issue in this case is whether Virginia statutes and regulations unduly burden the right of Virginia women, under the Fourteenth Amendment, to choose to have an abortion. This Court is fully cognizant of the unique nature of the abortion right and its controversial history. Accordingly, the Court acknowledges that "[m]en and women of good conscience can disagree, and ... some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage." Id. at 850, 112 S.Ct. 2791.

However, even though some "individuals find abortion offensive to [the] most basic principles of morality," it is the duty of this Court to neutrally evaluate and determine whether the challenged Virginia statutes and regulations violate the Fourteenth Amendment. Id. Thus, as it would with any other matter, this Court will faithfully interpret and apply the law and not, "mandate [its] own moral code." Id. Within the boundaries of the law, this Court recognizes that the ultimate tribunal is the conscience of women contemplating an abortion.

II. BACKGROUND

A. THE PARTIES

Plaintiffs in this case include Falls Church Medical Center, LLC; Whole Woman's Health Alliance; Virginia League for Planned Parenthood; and Dr. Jane Doe.¹ Each is a Virginia health care provider that provides elective abortion care in addition to other gynecological and family planning services. Collectively, Plaintiffs challenge the constitutionality of several Virginia statutes and regulations that govern the provision of abortion care throughout the Commonwealth. They contend that these interrelated statutes and regulations effectively place a constitutionally prohibited undue burden on Virginia women who have decided to terminate their pregnancies through abortion. The named Defendants include almost all of Virginia's regulatory agencies that have jurisdiction over abortion services, as well as commonwealths' attorneys in jurisdictions where facilities provide these services.²

B. THE CHALLENGED LAWS

In the Amended Complaint filed by Plaintiffs in this case, they charge that

Virginia has adopted 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.

(Am. Compl. ¶ 65, ECF No. 41.) Plaintiffs maintain that the wide array of restrictive regulations and statutory provisions governing abortion care in Virginia are a constitutionally offensive obstacle to a woman's right to seek an abortion.

This Court conducted an eight-day bench trial, at the beginning of which only six counts remained of Plaintiffs' Amended Complaint.³ Each of these six counts challenges an individual component of Virginia's legal framework that collectively governs the administration of pre-viability first and second trimester abortions throughout the Commonwealth. Plaintiffs' counts are as follows:

Count I focuses on Va. Code Ann. § 32.1-127(B)(1) (the "Licensing Statute"), which classifies any facility "in which five or more first trimester abortions per month are performed" as a category of "hospital." Va. Code Ann. § 32.1-127(B)(1). Pursuant to this classification, the Licensing Statute requires the Virginia Board of Health ("Board of Health") to establish and promulgate minimum standards for the licensing of facilities. These regulations encapsulate requirements for "hospitals" across the following categories:

(i) the construction and maintenance of hospitals ... to ensure the environmental protection and the life safety of its patients, employees, and the public; (ii) the operation, staffing and equipping of hospitals ...; (iii) qualifications and training of staff of hospitals ... except those professionals licensed or certified by the Department of Health Professions; (iv) conditions under which a hospital ... may provide medical and nursing services to patients in their places of residence; and (v) policies related to infection prevention, disaster preparedness, and facility security of hospitals....

Id.

Count II challenges Virginia's "Regulations for Licensure of Abortion Facilities," 12 Va. Admin. Code § 5-412, et seq. (hereinafter "VAC") (the "Licensing Regulations"), which are the direct result of the Licensing Statute. Plaintiffs also challenge the associated laws that criminalize the violation of state regulations.⁴ The Licensing Regulations contain 37 individual regulations; Plaintiffs challenge this chapter in its entirety and contend that these 37 regulations collectively impose an undue burden on Virginia women's access to abortion care.

Count III focuses on what is commonly referred to as Virginia's "Hospital Requirement," Va. Code Ann. § 18.2-73, and the associated regulations that require all second trimester abortions be performed in general hospitals or outpatient surgical hospitals. By providing an exception to Virginia's statute that criminalizes abortions, Va. Code Ann. § 18.2-71, the Hospital Requirement makes it lawful for a licensed physician to provide a second trimester abortion so long as the procedure is conducted in a hospital licensed by the Virginia Department of Health ("VDH"). See Va. Code Ann. § 18.2-73. Notably, however, by function of the regulations, second trimester abortion procedures cannot be conducted in abortion facilities despite the fact that those facilities are classified as a category of "hospital." See Va. Code Ann § 32.1-127(B)(1) ; see also 12 VAC § 5-412-230(A) ("Abortions performed in abortion facilities shall be performed only on patients who are within the first trimester of pregnancy meaning 13 weeks and 6 days after last menstrual period or based on an appropriate clinical estimate by a licensed health care provider."); 12 VAC § 5-412-40 (stating that general hospitals and outpatient surgical hospitals are not subject to the Licensing Regulations). Plaintiffs contend that limiting the lawful provision of second trimester abortions to general hospitals and outpatient surgical hospitals places an undue burden on Virginia women's access to this type of abortion care.

Count IV challenges Va. Code Ann. § 18.2-72 (the "Physician-Only law") that permits only physicians licensed by Virginia's Board of Medicine to perform abortion procedures in the Commonwealth lawfully. Plaintiffs contend that this law is unduly burdensome because it limits access to abortion care by precluding other licensed medical professions, namely Nurse Practitioners,...