As someone who is an avid vocal supporter of abortion, but is also tasked with upholding Virginia’s pro-life legislation in the courts of law, Democrat Attorney General Mark Herring has recently filed a motion to dismiss a federal lawsuit that invokes sweeping challenges of numerous state restrictions on abortion. Last month, Planned Parenthood, the abortions rights advocacy group, along with the National Center for Reproductive Rights, the ACLU of Virginia, and several other abortion providers filed the suit in the Eastern District of Virginia’s Richmond court division.
The lawsuit, which names a group of state health officials and local prosecutors as defendants, would challenge several key elements of Virginia’s rules and regulations on abortions. Those challenged in the case are the Commonwealth’s licensing rules for abortion providers and laws that require all second-trimester abortions to be performed in hospitals. Moreover, they are challenging laws that prevent clinicians from performing abortions by limiting the practice to licensed doctors, and mandatory ultrasounds with a 24-hour waiting period before a woman undergoes an abortion.
According to a report from the Richmond Times-Dispatch, the plaintiffs in the case say that Virginia’s laws are, “burdensome, unwarranted and unconstitutional restrictions on abortion.”
“For too long, we have looked to our state legislature to ensure that our rights and liberties are protected. But they have failed us,” said Rosemary Codding, the founder and director of the Falls Church Healthcare Center, a plaintiff in the case.
The abortion rights advocates claim that the lawsuit is a way forward after the U.S. Supreme Court delivered a ruling two years ago that set new legal standards for what states can and cannot do to limit abortions. In Whole Woman’s Health v. Hellerstedt (2016), the Court ruled 5-3 that states cannot create an “undue burden” for women seeking abortions by passing restrictive medical regulations. The case challenged a law passed by the Texas legislature in 2013, similar to the provisions restricting second-trimester abortions to only be performed in hospitals in Virginia.
Since Democrats have controlled Virginia’s executive branch since 2014, the pro-life, Republican-controlled General Assembly has not had the chance to impose new restrictions on abortion. Though, many states around the country have passed laws restricting access to abortion, much like recent successes to limit the procedure beyond a fetal age of 20 weeks.
In the Whole Woman’s Health case, the Court’s opinion, written by Justice Stephen Breyer, said that an undue burden must not be placed on women who, “…exercise their constitutional right to an abortion.” Such an opinion is backed by two precedents.
In Roe v. Wade (1973), the Court ruled 7–2 that a “right to privacy” under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion. Two decades later, in Planned Parenthood v. Casey (1992), the Court rejected Roe’s trimester framework as a right to an abortion, while affirming its central distinction that a woman has a right to abortion until fetal viability, which is relegated further back in the week-based time frame as science progresses.
Furthermore, the new judicial and constitutional standard for state legislation in regards to abortion regulations is if the purpose or effect of the law is to impose an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The plaintiffs in the lawsuit against Virginia law claim the state’s restrictions create the aforementioned burden.
In the motion filed Friday, Herring was put in an awkward political situation – siding with the plaintiffs and refuse to defend the Virginia’s legal restrictions on abortion, or uphold the state legislation, going against his own political party. Herring walked a fine line, noting “powerful arguments” from the plaintiffs in the case against certain abortion restrictions. Meanwhile, he explained that the proper place to challenge the restrictions is the legislature, not the courts.
“Many of the challenged laws are decades old, some of the challenged regulations are under active review, and plaintiffs make powerful arguments that certain other requirements warrant reconsideration by the Virginia General Assembly,” the motion states, according to The Washington Post. “But a federal courtroom is not the proper venue for debating the wisdom of these policies,” being the legislature is where to challenge the restrictions.
Herring’s motion stated the plaintiffs have raised “cogent policy objections” that should come under “careful consideration by Virginia lawmakers and regulators.” That being said, the motion further explains, “…well-established principles of federal court jurisdiction prevent plaintiffs from challenging provisions that do not harm them, and current Supreme Court precedent forecloses plaintiffs’ constitutional challenges.”
There were obvious responses to the motion from members of both political parties in the Commonwealth, including the Virginia legislature’s House Majority Leader Todd Gilbert (R-Shenandoah) expressing his pleasure with the decision while slamming the attorney general in the process.
“Virginia’s pro-life laws are so reasonable, sensible and constitutionally sound that even a pro-abortion Attorney General who accepted tens of thousands of dollars from Planned Parenthood feels they must be defended,” Gilbert said via a written statement.
As well, the House Republican caucus took to Facebook, claiming credit for Herring’s decision in a fundraising appeal, echoing Gilbert’s opinion.
“WE DID IT! After thousands of you signed the petition asking Attorney General Mark Herring to defend the lawsuit filed by extreme pro-abortionists – today he announced that he filed a motion to dismiss the lawsuit!
Virginia’s pro-life laws are so reasonable, sensible, and constitutionally sound that even a pro-abortion Attorney General who accepted tens of thousands of dollars from Planned Parenthood feels they must be defended. The law is so crystal clear that even Attorney General Mark Herring cannot ignore it.
This won’t be the last attempt to undermine Virginia’s pro-life laws, with your help we will be ready.
Will you donate now to help build momentum to protect Virginia’s pro-life laws?”
Planned Parenthood released a statement after the motion noting Herring’s solid pro-abortion political leaning, but also his duty to uphold state law in court.
“We recognize Attorney General Herring is a staunch champion for women’s health, and he also has a duty to fulfill,” the statement said. “The people of Virginia elected him into office to do a job and we expect that he will ensure a fair process in defending the laws left behind by his predecessors.”
Victoria Cobb, president of the conservative-minded Family Foundation, proclaimed her suspicion with Herring’s decision. She slammed the attorney general, saying that Herring is attempting to “save the abortion industry” by “quashing” a lawsuit that was “poorly timed,” due to the retirement of U.S. Supreme Court Justice Anthony Kennedy – a notable swing voter on abortion during his time on the bench.
Ahead of the Senate confirmation of District of Columbia Circuit Court Judge Brett Kavanaugh to the U.S. Supreme Court, a 5-4 conservative bench will be cemented for at least the next generation. With the Planned Parenthood, et al. case most likely being the first one to be heard by the newly reorganized Court, it would be sufficient to say that the case would be dismissed as Virginia is not creating an undue burden on women seeking an abortion as dictated in Planned Parenthood v. Casey (1992), and that the Commonwealth’s laws are less restrictive than that of Texas’s that were thrown out as unconstitutional.
Herring decision, claiming that the questions at hand are legislative and not judicial, protects abortion rights providers from a conservative Supreme Court, giving the decision back to the state legislature, in which Republicans have a razor-thin, one-member majority. While no Republicans would flip to the other side of the aisle over abortion legislation, it does make abortion rights a top campaign agenda item for the progressive left that stormed into Richmond at the beginning of 2018 with a California-style, resistance-decreed modis operandi of undoing reasonable, sensible, and constitutionally sound laws that protect the populous.