United States District Court, E.D. Virginia, Richmond Division
FALLS CHURCH MEDICAL CENTER, LLC d/b/a FALLS CHURCH HEALTHCARE CENTER, et al, Plaintiffs,
M. NORMAN OLIVER, VIRGINIA HEALTH COMMISSIONER, et al., Defendants.
MEMORANDUM OPINION (CROSS-MOTIONS FOR SUMMARY
E. HUDSON, UNITED STATES DISTRICT JUDGE
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 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. 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.
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. 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.
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).
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).
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
Compl. ¶ 65, ECF No. 41.)
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.)
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.)
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. 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." 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.,  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.
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).
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
STANDARD OF REVIEW
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)).
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.
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.
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.
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).
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.
Counts III and IV: The Hospital Requirement and
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. Plaintiffs argue that these
superannuated regulations are unconstitutional.
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.)
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.)
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