Pro-choice movement seizes on chance to overturn decades-old, anti-abortion laws in Virginia

"I had wanted to do this pretty much since I was sitting in the courtroom and heard Justice Breyer read the majority opinion and I realized not only did we win in our case but this is the new standard."

Supporters of legal access to abortion rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB        (Photo credit should read SAUL LOEB/AFP/Getty Images)
Supporters of legal access to abortion rally outside the Supreme Court in Washington, DC, March 2, 2016, as the Court hears oral arguments in the case of Whole Woman's Health v. Hellerstedt, which deals with access to abortion. / AFP / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)

Health care providers are trying to use the Supreme Court’s landmark decision in Whole Woman’s Health v. Hellerstedt to strike down five abortion restrictions passed more than 10 years ago in Virginia.

The 2016 Supreme Court decision struck down some of the most regressive restrictions in Texas, as the highest court found they were more burdensome than beneficial for people looking to terminate their pregnancies. Now, providers want the courts to examine Virginia laws because they suspect those too will fail the Supreme Court’s “undue burden” test.  

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Falls Church Healthcare Center, Whole Woman’s Health of Charlottesville, A Capital Women’s Health Clinic, and the Virginia League for Planned Parenthood filed the lawsuit in federal district court on Wednesday. They’ll be represented by the Center for Reproductive Rights and Planned Parenthood Federation of America. 

“I had wanted to do this pretty much since I was sitting in the courtroom and heard Justice Breyer read the majority opinion and I realized not only did we win in our case but this is the new standard,” said Whole Woman’s Health CEO Amy Hagstrom Miller. “But this kind of comprehensive repeal case takes some time to put together. We are challenging dozens of laws.”

Health care providers are challenging the following restrictions:

  • a 1975 law requiring second trimester abortions be performed in a hospital
  • a 1975 law mandating that only physicians can perform abortions
  • a 1979 law demanding that any facility that provides five or more first-trimester abortion services per month must become licensed as a type of hospital
  • a 2003 law requiring people to wait 24 hours between a mandatory ultrasound and the procedure
  • Laws from as early as the 1950s criminalizing people for safe, self-managed abortions

“Here in Virginia, we have been up against a regime of restrictions that make it harder for patient to access safe and legal abortion. Today, I stand with my partners to support and defend individuals seeking reproductive health services on the ground, day to day, and face to face,” said Shelley Abrams, Executive Director of A Capital Women’s Health Clinic. Between 2009 and 2016, the number of health facilities providing abortion services declined by more than half, according to activists.

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“As a physician who dedicates my career to the health and well-being of women, I know firsthand just how difficult these medically unnecessary laws are on patients in need of care,” said Dr. Shanthi Ramesh, Medical Director, Virginia League for Planned Parenthood. “In fact, women seeking a safe, legal abortion after the first trimester have only two health center options in the state because of medically unnecessary restrictions.”

Until now, reproductive rights activists have been mostly protecting against the Trump administration rolling back access to reproductive care or abortion foes looking to outlaw abortion altogether, so this lawsuit is a welcomed outlier.

Activists are especially mobilized by local health wins. Recently, Virginia activists got lawmakers to pass a bill that provides no-cost menstrual products for incarcerated women. But perhaps the biggest win for progressives was electing enough lawmakers to expand Medicaid under the Affordable Care Act after five years of GOP resistance. It was the kind of moment to draw inspiration from, so reproductive rights activists did.

“Today’s lawsuit marks a new day in Virginia. State advocates have been mobilizing and organizing for months, and it’s creating real change. We are fighting on all fronts, working alongside lawmakers and our fellow health care providers. Just last month, 400,000 Virginians gained access to health care through Medicaid expansion. And we aren’t stopping there,” said Dawn Laguens, Executive Vice President, Planned Parenthood Federation of America in a statement. “It’s time to unite and work together to ensure every person has the freedom and opportunity to control their lives at the most basic level, including access to safe, legal abortion.”

Wednesday’s lawsuit is a different strategy. Instead of blocking newly minted anti-abortion laws from enacting, providers are going after old ones. And this isn’t the first of its kind. Just last week, abortions providers — including Whole Woman’s Health — filed a lawsuit over restrictive Texas abortion measures that date back 20 years in some cases. This strategy first began in June 2017, on the one-year anniversary of Whole Woman’s Health v. Hellerstedt, when The Center for Reproductive Rights sued over years-old Louisiana anti-abortion laws. The next one came in April 2018, when they filed a lawsuit targeting old Mississippi laws.

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“It’s a different strategy and it’s a strategy that I’m doing with my Whole Woman’s Health Alliance clinics which are my nonprofit clinics that I opened in 2017 — opened in Austin, and opened in Charlottesville — and have been trying to open a clinic in Indiana. [We’re] going into places that are challenging, and places that have seen really disproportionate effects of TRAP laws, and clinics being shuttered, and people having a lot of trouble accessing care,” Hagstrom Miller told ThinkProgress. “We could serve as a force for good.”

Where there are restrictive abortion laws, old or new, and a Whole Woman’s Health clinic to serve as a plaintiff, there might be lawsuits. If there isn’t a Whole Woman’s Health clinic in a state that’s passed similar restrictive abortion laws — for example, Ohio — they hope to inspire local abortion providers to take action.

Meanwhile the anti-abortion movement is trying to bring its own case before the Supreme Court — one that asks the highest court to ban virtually all abortions. Abortion foes are banking on the Trump administration appointing another Supreme Court justice so they can overturn Roe v. Wade, which effectively legalized abortion. But reproductive rights activists argue they have a better shot given that the Supreme Court’s makeup hasn’t changed much since it handed down the 2016 landmark decision that the pro-choice crowd is now capitalizing on.