In a ruling on Monday (in Falls Church Medical Center v. Oliver), senior federal district judge Henry E. Hudson (a Bush 43 appointee) held that a 1975 Virginia law that allows only licensed physicians to perform abortions cannot be enforced against abortions in the first trimester. On initial read, I find Judge Hudson’s ruling on this issue very puzzling—indeed, deeply troublesome—in several respects:
1.Hudson acknowledges that the challenge to the physician-only law, “if waged by Plaintiffs as a facial challenge, … could face a formidable arsenal of countervailing authority.” (Slip op. at 16 (emphasis added).)
The Supreme Court in Planned Parenthood v. Casey (1992) noted with approval that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others.” (Hudson quotes the first part of this passage, but not the second.) On that basis, the Court upheld a requirement that a licensed physician, rather than a qualified assistant, provide the information relevant to informed consent. Likewise, in Mazurek v. Armstrong (1997), the Court summarily reversed a Ninth Circuit ruling against a licensed-physician-only abortion law and emphasized “our repeated statements in past cases … that the performance of abortions may be restricted to physicians.”
Contrary to Hudson, I don’t see how the holdings of Casey and Mazurek are limited to facial challenges, and I don’t see why they don’t dispose of plaintiffs’ challenge.
(I also don’t understand Hudson’s account of why plaintiffs’ challenge in the case before him is not a facial challenge. He states that “Plaintiffs’ challenge … is more narrowly focused to the specific application of the Physician-Only Law to access abortion care in the Commonwealth of Virginia.” (P. 16.) But that supposedly “specific application” is the entire reach of the law.)
2. Hudson’s ruling applies to all first-trimester abortions, both medication abortions and surgical abortions.
Hudson explains that there are “two forms” of abortion that “can be utilized in the first and early second trimester of pregnancy”: aspiration abortion and dilation-and-evacuation abortion. (P. 19.) Hudson appears to credit one physician’s testimony that “some APCs [non-physician advanced practice clinicians] could capably perform first trimester abortions, but ‘I don’t believe their training would support them managing complications.’” (P. 19 (emphasis added); the internal quote is the physician’s testimony, and the broader quote is Hudson’s paraphrase of that testimony.) But if that is so, why isn’t it eminently reasonable, and consistent with Casey and Mazurek, for Virginia to require that only physicians conduct first-trimester surgical abortions? If Hudson provides an answer to this question, I don’t see it.
Hudson’s seeming disregard for the state’s interest in maximizing the safety of surgical abortion is further reflected in his statement that “[s]urgical abortions need not be performed in a sterile operating room.” (P. 19.)
3. Hudson concludes that plaintiffs are entitled to summary judgment against the physician-only law for first-trimester abortions, but that the physician-only requirement is “amply justif[ied]” for second-trimester abortions (p. 37), as “potential complications in performing second trimester abortions may arise that may warrant the judgment and skills that a physician can best provide” (p. 20). Are we really supposed to believe that there is some marked change in the safety of surgical abortion that occurs precisely at the trimester mark? And, if there is, why doesn’t Hudson bother to spell out precisely when the first trimester ends?
4. Although Hudson’s ruling is premised on the proposition that some trained medical professionals other than licensed physicians could perform first-trimester abortions (including surgical abortions), his ruling, as I understand it, would allow anyone to do so. Hudson rules that the physician-only requirement is invalid during the first trimester, but he doesn’t substitute any less restrictive requirement in its place. (Perhaps the accompanying order that he says he will issue will do so.)
Again, these are my takes on my initial review of Hudson’s ruling. I acknowledge that I have found the ruling difficult to make sense of. If my further review clarifies or corrects my initial understanding, I will amend or supplement this post.