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Falls Church Medical Center, LLC v. Oliver

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

May 6, 2019





         This action challenges the constitutionality of the statutes and regulations governing health care providers who offer abortion care or services in Virginia. Seeking declaratory and injunctive relief, Plaintiffs[1] argue that the challenged statutes and regulations pose a substantial obstacle to the availability of abortion services for Virginia women, in violation of the Fourteenth Amendment to the United States Constitution. This case is presently before the Court on Motions for Summary Judgment filed by both Plaintiffs and Defendants.[2] All parties have filed memoranda supporting their respective positions, accompanied by pertinent exhibits. The Court heard oral argument on April 8, 2019 and ordered supplemental briefing on several issues.

         In support of their Motion for Partial Summary Judgment on Counts III and IV of the Amended Complaint, Plaintiffs offer the deposition testimony of multiple physicians and medical experts who opine that contemporary abortion procedures are extremely safe, and, as a result, complications necessitating advanced medical care are rare, even with respect to second trimester abortions.[3] Therefore, those procedures can be conducted by trained medical professionals other than licensed physicians. Defendants, on the other hand, seek summary judgment on Counts I-IV and VII and VIII of the Amended Complaint. Similarly, Defendants offer expert testimony to contend that while serious complications are admittedly rare, when they do occur, particularly with respect to second trimester procedures, they are most effectively addressed in a hospital setting by a physician.


         Distilled to their essence, Plaintiffs' individual counts in the Amended Complaint are largely premised on the United States Supreme Court's analysis in Whole Woman's Health v. Hellerstedt, 136 S.Ct. 2292 (2016). In Whole Woman's Health, the Court restated with approval the time-honored standard for judicial review of allegedly burdensome abortion regulations that the Court originally articulated in Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992). Justice Breyer, speaking for the Court in Whole Woman's Health, described that standard as follows:

[A] plurality of the Court [in Casey] concluded that there "exists" an "undue burden" on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the "purpose or effect" of the provision "is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." [] The plurality [of the Court in Casey] added that "[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on that right."

136 S.Ct. at 2300 (quoting Casey, 505 U.S. at 878) (emphasis in original).

         Informed by Casey, the Court in Whole Woman's Health also cautioned that "a statute which, while furthering [a] valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends." Whole Woman's Health, 136 S.Ct. at 2309 (quoting Casey, 505 U.S. at 877). The rule announced in Casey, however, requires that courts "consider the burdens a law imposes on abortion access together with the benefits those laws confer." Id. (citing Casey, 505 U.S. at 887-98).

         The claims advanced by Plaintiffs in this case are closely moored to the foregoing analytical framework articulated in Casey and Whole Woman's Health. Plaintiffs urge the Court to find that, in their view, the needless and antiquated administrative and legislative burdens on abortion providers in Virginia are constitutionally offensive obstacles to a woman's right to seek an abortion. Plaintiffs 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 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.)

         According to Plaintiffs, the resulting mandate prescribed a wide array of restrictive regulations, which dictate strict standards for construction, staffing, equipment, enhanced training, infection prevention, and facility security. (Id. ¶ 68.) In addition, the Virginia Board of Health promulgated a host of regulations that govern first trimester abortion facilities, including increased record keeping, additional personnel and staffing requirements, restrictions on employment of physicians not licensed to practice in the Commonwealth of Virginia, periodic inspections by the Virginia Department of Health, including allowing such inspectors to review patient records, and requiring staff to provide certain medical information to patients prior to administering an abortion. (Id. ¶ 69.)

         Further, according to Plaintiffs, Va. Code Ann. § 18.2-73, enacted in 1975, working in conjunction with other regulations, requires that lawful abortions performed during the second trimester of pregnancy must be carried out in a licensed hospital that qualifies and meets the regulatory requirements of an outpatient surgical hospital. (Id. ¶ 72.) Also adopted in 1975, Va. Code Ann. § 18.2-72, the so-called "Physician-Only Law," exempts licensed physicians from Virginia's general criminal ban on abortion-Va. Code Ann. § 18.2-71, sometimes referred to as Virginia's felony abortion statute. Plaintiffs contend that the Physician-Only Law unjustifiably limits "the pool of abortion providers, even while advanced practice clinicians ("APCs")-including licensed nurse practitioners, CNMs [certified nurse midwives], and physician assistants- safely and routinely provide abortion care, including medication and aspiration abortion, in other states throughout the country." (Id. ¶ 73.)

         Plaintiffs' constitutional challenges to the regulatory and statutory provisions at issue were originally framed in an eight-count Amended Complaint; however, only seven counts remain, six of which are presently challenged by at least one of the parties under Federal Rule of Civil Procedure 56.[4] The parties have challenged the following counts in their cross-motions for summary judgment: Counts I through IV are each prefaced with the general heading of "Substantive Due Process - Rights to Liberty and Privacy." Count I focuses on the so-called "Licensing Statute," Va. Code Ann. § 32.1-127(B)(1) in conjunction with what Plaintiffs refer to as Virginia's "Criminalization Laws."[5] Section 32.1-127(B)(1) requires that any facility "in which five or more first trimester abortions per month are performed ... be classified as a category of 'hospital, '" Va. Code Ann. § 32.1- 127(B)(1), thereby triggering a host of regulatory requirements. Count II targets Virginia's Licensing Regulations for first trimester abortion facilities, 12 Va. Admin. Code § 5-412, et seq., and the Criminalization Laws, which Plaintiffs contend impose an undue burden on Virginia women's fundamental right to have an abortion prior to viability. Count III focuses on Va. Code Ann. § 18.2-73, referred to as the "Hospital Requirement," in conjunction with Virginia's Licensing Regulations for hospitals, 12 Va. Admin. Code § 5-410, et seq., [6] as a condition of licensure of an abortion provider, and the Criminalization Laws. Count IV challenges Va. Code Ann. § 18.2-72 that only permits licensed physicians to lawfully perform abortion procedures.

         In Count VII, Plaintiffs allege that the Hospital Requirement is unconstitutionally vague and violates "due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution because it fails to define the terms 'hospital' and 'second trimester of pregnancy.'" (Am. Comp. ¶ 266.) Finally, Count VIII of the Amended Complaint alleges that Virginia's Licensing Regulations violate the Fourth Amendment by subjecting Plaintiffs to "biennial unannounced, warrantless inspections ...." (Id. ¶ 268.) The regulatory provision in question in Count VIII, 12 Va. Admin. Code § 5-412-90, authorizes agents of the Virginia Department of Health to enter abortion facilities for the purpose of conducting inspections. "Such entries and inspections shall be made with the permission of the owner or person in charge, unless an inspection warrant is obtained after denial of entry from an appropriate circuit court." 12 Va. Admin. Code § 5-412-90. It further provides that "[i]f the owner, or person in charge, refuses entry, this [refusal] shall be sufficient cause for immediate revocation or suspension of the license." Id. Such license suspension shall be indefinite in duration, until the commissioner "determines that the conditions upon which suspension was based have been corrected and the interest of the public will not be jeopardized by resumption of operation." 12 Va. Admin. Code § 5-412-130(C).

         In their respective motions for summary judgment, Plaintiffs seek judgment only on Counts III and IV of their Amended Complaint. Defendants seek summary judgment on Counts I-IV as well as Counts VII and VIII. In fashioning any remedies that are appropriate in this case, the Court's hand will be guided by the wisdom of the Supreme Court in Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320 (2006). "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer ... to enjoin only the unconstitutional applications of a statute while leaving other applications in force, or to sever its problematic portions while leaving the remainder intact." Id. at 328-29 (internal citations omitted). This Court will hue closely to this sage principle unless the invalidation of any single element of a statute or regulation affects its constitutionality in its entirety.


         The standard for review of cross-motions for summary judgment is well-settled in the Fourth Circuit:

On cross-motions for summary judgment, a district court should "rule upon each party's motion separately and determine whether summary judgment is appropriate as to each under the [Federal Rule of Civil Procedure] 56 standard." Summary judgment is appropriate only if the record shows "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."

Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150, 156 (4th Cir. 2010) (alteration in original) (first quoting Monumental Paving & Excavating, Inc. v. Pa. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999), and then quoting Fed.R.Civ.P. 56(c)).

         The relevant inquiry in the summary judgment analysis is "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine factual dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). A material fact is one that might affect the outcome of a party's case. Id. at 248; JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). A genuine issue concerning a material fact only arises when the evidence, viewed in the light most favorable to the non-moving party, is sufficient to allow a reasonable trier of fact to return a verdict in the party's favor. Id.

         To defeat an otherwise properly supported motion for summary judgment, the non-moving party must rely on more than conclusory allegations, "mere speculation or the building of one inference upon another" or "the mere existence of a scintilla of evidence" concerning a material fact. Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997) (first quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985), and then quoting Anderson, 477 U.S. at 252). Accordingly, to deny a motion for summary judgment, "[t]he disputed facts must be material to an issue necessary for the proper resolution of the case, and the quality and quantity of the evidence offered to create a question of fact must be adequate-----" Thompson Everett, Inc. v. Nat'l Cable Adver., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995) (citing Anderson 477 U.S. at 252). "Thus, if the evidence is 'merely colorable' or 'not sufficiently probative,' it may not be adequate to oppose entry of summary judgment." Id. (citing Anderson, 477 U.S. at 249-50). Of course, the Court cannot weigh the evidence or make credibility determinations in its summary judgment analysis. See Williams v. Staples, Inc., 372 F.3d 662, 667 (4th Cir. 2004).


         This Court's analysis of the parties' cross-motions for summary judgment begins by restating the seminal language of Roe v. Wade describing abortion in early pregnancy as relatively safe, but not without risk. 410 U.S. 113, 149 (1973). The Court in Roe stated:

The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise.... Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.

         Id. at 150.

         The State, however, may not place a substantial obstacle in the path of a woman's choice to exercise her substantive due process right to abortion care. But as Casey counsels, courts must assess the burdens that a law imposes against the benefits that the law confers. 505 U.S. at 887. Moreover, while this Court must review the legislative fact-finding of the Virginia General Assembly under a differential standard, it must not "place dispositive weight on [the legislature's] findings." Gonzales v. Car hart, 550 U.S. 124, 165 (2007).

         Counts I-IV of the Amended Complaint appear to be the epicenter of the controversy in this case. However, because both Plaintiffs and Defendants have moved for summary judgment with respect to Counts III and IV, the Court will address those counts first. The Court will then address Counts I and II, to then be followed by Counts VII and VIII.

         A. Counts III and IV: The Hospital Requirement and Physician-Only Law

         Count III challenges the requirement that second trimester abortions be "performed in a hospital licensed by the State Department of Health or operated by the Department of Behavioral Health and Developmental Services." Va. Code Ann. § 18.2- 73. In addition, the statute permits such procedures to be performed by a licensed physician during the second trimester and prior to the third trimester. Id. Count IV is closely allied with Count III, but focuses on Va. Code Ann. § 18.2-72, which states that

[I]t shall be lawful for any physician licensed by the Board of Medicine to practice medicine and surgery, to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman during the first trimester of pregnancy.

Va. Code Ann. § 18.2-72. If an abortive procedure conducted in Virginia does not conform with either of the exceptions provided for in § 18.2-72 and § 18-2.73, then that conduct is punishable as a Class 4 felony under Va. Code Ann. § 18.2-71.[7] Plaintiffs argue that these superannuated regulations are unconstitutional.

         Common to both Counts III and IV is the issue of whether the Hospital Requirement and Physician-Only Law, both individually and collectively, place an undue burden on regional access to second trimester abortion services and care. Plaintiffs' argument, in significant part, focuses on the paucity of facilities providing second trimester care in certain portions of Virginia. It appears to be undisputed that only two facilities in the Commonwealth of Virginia meet the strict licensing requirements of an outpatient surgical hospital authorized to perform second trimester abortions. The Virginia Beach facility provides second trimester abortions two days per week- Tuesdays and Fridays. The second facility is the Virginia Commonwealth University Medical Center ("VCU") in Richmond. VCU allows second trimester abortion procedures in its operating room one day per week. (Pls.' Mem. Supp. Mot. Partial Summ. J. 10-11, ECF No. 95; Defs.' Mem. Supp. Mot. Summ. J. 5-6.) Plaintiffs add that because VCU is also a trauma center, care of second trimester abortion patients is often delayed because other patients requiring emergency care take priority. Plaintiffs add that these limitations on the VCU facility often require second trimester abortion patients to wait for extended periods of time, and they also put second trimester abortion patients at risk of "being cared for by staff not specialized in abortion care." (Pls.' Mem. Supp. Mot. Partial Summ. J. 10-11.)

         In their declarations accompanying Plaintiffs' Reply Memorandum, a number of witnesses reinforce Plaintiffs' contentions. Paulette McElwain ("Ms. McElwain"), President and CEO at Virginia League of Planned Parenthood ("VLPP"), explained that VLPP facilities are experiencing an increased volume of women seeking first trimester abortions. "Although we try to treat patients before they pass the gestational age cut-off for medication abortion or for a first-trimester procedure, we are currently unable to do so in every case." (Pls.' Reply Mem., Ex. 1 at 1-2, ECF No. 110.)

         With respect to the availability of second trimester (pre-viability) abortions, Dr. Shanthi S. Ramesh ("Dr. Ramesh"), a practicing obstetric and gynecological physician, stressed the necessity for additional facilities offering second trimester abortion services. She also testified that if additional facilities offering second trimester services were available, "it would mean more access to second trimester abortion earlier in the second trimester rather than pushing women out until later in the second ...

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