by Thomas Valentine
Last week, a Virginia judge unilaterally declared that the state’s law requiring that only a licensed physician can perform first-trimester abortions was unconstitutional. Now, in a shocking move, that same judge has rescinded his own ruling.
Henry Hudson, a federal district judge, ruled last week that a 1975 law requiring a licensed physician be on site to perform a first-trimester abortion imposed an “undue burden” on the Supreme Court-invented right to obtain an abortion. The ruling would have allowed physician’s assistants, nurses, and potentially others to perform abortions on their own. (Hudson decided to preserve the requirement for a physician for second-trimester abortions because of the increased probability of serious complications for the mother.)
Planned Parenthood and other Virginia abortion providers, who brought the case, are seeking to overturn other laws that require second-trimester abortions to be performed in licensed hospitals and that women be given the opportunity to see their baby on an ultrasound and then wait 24 hours before obtaining an abortion. Hudson said those issues could wait for a trial but issued an immediate injunction against the first-trimester licensed physician law. It was the first ruling in a federal court to attempt to nullify a physician requirement.
Victoria Cobb of the Family Foundation of Virginia remarked in response to the ruling:
Abortion through birth isn’t enough for the abortion industry. Now it wants to increase its profit margin by not having to pay for doctors to do surgery.
But yesterday, Hudson vacated — or erased — his own ruling in a highly unusual move. Explaining his change of mind, he said the summary judgement (or unilateral declaration against the physician rule) was “improvidently awarded.” He admitted, “on further consideration, whether the ‘Physicians-Only Law’ presents an undue burden to Virginia women who seek an abortion is a material fact that is genuinely in dispute.” The physician rule will be deliberated along with the laws at trial in Richmond next week.
Olivia Gans Turner, president of the Virginia Society for Human Life, responded that the pro-life group “welcomes the action of Judge Hudson to reverse his own ruling, thereby respecting the laws in Virginia. It is critical that the state’s rights to pass such protective regulations regarding abortion be upheld.”
As a fairly low-level judge, Hudson has not ruled on many contentious constitutional issues, but he has had a somewhat conservative, constitutionalist streak. As a Commonwealth’s Attorney in the 1970s and 1980s, he cracked down pornographic stores and predatory “massage parlors” in the state. He was appointed to lead the Reagan administration’s Commission on Pornography, working to stop the spread of pornography and its harmful effects. He ran for the Republican nomination for Congress in Virginia’s 8th District, seeking to challenge the infamous Democrat Rep. Jim Moran. And in 2002, he was appointed to the federal bench by President George W. Bush. In 2010, he issued the first federal ruling to strike down part of Obamacare, saying the individual mandate was an unprecedented and unconstitutional power grab by Congress.
It’s important to understand that Hudson has not said that the physician requirement is constitutional — he has just admitted that he went too far and is willing to consider arguments in its favor. (The laws are being represented not by the Attorney General’s office, but by outside counsel hired by the Attorney General’s office because current Attorney General Mark Herring is pro-abortion. That’s disappointing, but at least Herring was willing to allow someone else to perform his duty to defend the state’s laws in this case, unlike when he said nobody would be allowed to defend Virginia’s marriage laws.) The law will hopefully be given a fair hearing at trial next week, and perhaps Hudson will recognize these common-sense, popular laws are perfectly constitutional.