The Virginia law and regulations related to licensure of abortion facilities (§ 32.1-127 of the Code of Virginia and Regulations for Licensure of Abortion Facilities 12 VAC 5 - 412) are substantially similar to the laws in Texas which were the subject of the United States Supreme Court in Whole Woman’s Health v. Hellerstedt, Commissioner, Texas Dept. of State Health Services (June 27, 2016) www.supremecourt.gov/.../15-274_p8k0.pdf. The Texas law was found to violate the women’s rights to Due Process under the 14th Amendment because it imposed an “undue burden” on the right of women to elect an abortion during the “nonviability” period of pregnancy while not conferring a benefit to women’s health.  

The Court upheld and applied the Court’s prior ruling in Planned Parenthood of Southeastern Pa. v. Casey (1992) which struck down a state law that required women to sign a statement saying they had notified their husband before being able to obtain an abortion.  The Casey Court noted 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.” (Emphasis added.) Dec. at 1.

The Court in this case stated that the rule announced in Casey “requires that courts consider the burdens a law imposes on abortion access together with the benefits these laws confer.” (Emphasis added.)  Dec. at 19-20.

The Court noted in Whole Women’s Health that requirements for ambulatory surgical clinics included numerous spatial requirements including corridor widths and advanced heating and cooling requirements that would cost a million dollars or more for abortion clinics to add and that this would reduce the number of abortion clinics in Texas to seven or eight facilities located in large cities. Dec. at 32. We have seen a similar reduction in abortion facilities in Virginia as a result of § 32.1-127 of the Code of Virginia and the Regulations for Licensure of Abortion Facilities 12 VAC 5 - 412.

The Court found that this requirement would not result in better health care for women as evidenced by the fact abortions in clinics were safe with only one death in about 120,000 to 144,000 abortions. By contrast, the death rate in child birth is 14 times higher “but Texas law allows a midwife to oversee childbirth in a patient’s own home”.  Dec. at 30. The death rate for a colonoscopy, which typically takes place outside a hospital (or surgical center) “has a mortality rate 10 times higher than abortion.” Dec. at 31.

The Supreme Court has clearly articulated the standard applicable to laws and regulations that apply to access to abortion facilities. The Regulations for Licensure of Abortion Facilities 12 VAC 5 - 412 should be suspended until Virginia demonstrates that they comply with the constitutional standard set forth in Whole Women’s Health.