News4's Northern Virginia Bureau covers the races

Va. Judge: Abortion Clinic's Lawsuit Can Go Forward

By Matthew Barakat
|  Thursday, Oct 31, 2013  |  Updated 2:31 PM EDT
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A judge turned aside arguments from Virginia's attorney general's office Wednesday and allowed a Falls Church abortion clinic's lawsuit challenging new, stricter regulations to go forward. News4's Northern Virginia Bureau Chief Julie Carey has the story.

Julie Carey

A judge turned aside arguments from Virginia's attorney general's office Wednesday and allowed a Falls Church abortion clinic's lawsuit challenging new, stricter regulations to go forward. News4's Northern Virginia Bureau Chief Julie Carey has the story.

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A judge turned aside arguments from Virginia's attorney general's office Wednesday and allowed a Falls Church abortion clinic's lawsuit challenging new, stricter regulations to go forward.

The Virginia Board of Health, supported by Attorney General and GOP gubernatorial candidate Ken Cuccinelli, asked an Arlington County judge to toss out the lawsuit filed earlier this year by the Falls Church Healthcare Center. But the judge, Benjamin N.A. Kendrick, said he wants the lawsuit to get a full hearing so that appellate courts can ultimately decide the matter.

Kendrick's ruling largely avoided the merits of the clinic's case and turned mostly on procedural issues.

Still, the clinic's lawyers were encouraged by the results of Wednesday's hearing.

“We're thrilled,” said Larry Roberts, one of the clinic's attorneys. “Our main goal was to make sure that the full case will be heard.”

Supporters of the clinic cheered outside the Arlington County courthouse, News4’s Julie Carey reported. Falls Church Health Care Center Director Rosemary Codding called the decision “spiritually uplifting.”

The lawsuit challenges new regulations approved by the General Assembly in 2011 that subject abortion clinics to many of the same standards imposed on hospitals, including requirements specifying the width of hallways and the size of closets.

At one point, the board of health had wanted to exempt existing clinics from the new regulations, but Cuccinelli advised them that they had no legal authority to do so. Cuccinelli warned the board that he could not represent them in court if they left the exemption in and were sued. The board ultimately decided to apply the standards to existing clinics.

At Wednesday's hearing, Solicitor General Duncan Getchell, representing the board of health, asked the judge to dismiss the lawsuit. As a practical matter, though, his goal was to limit some of the arguments that the clinic's lawyers could raise at trial. Specifically, Getchell said the judge should only consider the legality of the regulations that were ultimately approved and that the judge has no cause or authority to consider whether the board perhaps could have made an exemption for existing clinics.

The clinic's lawyer, Michael Robinson, said the board's actions must be understood in their full context. The board's initial willingness to exempt existing clinics, after receiving medical testimony that allowing an exemption would be acceptable, is evidence that the final, stricter regulations were imposed in an arbitrary manner, he said.

The judge imposed none of the constraints that Getchell sought to impose on the clinic's suit, though he could do so later.

After Wednesday's hearing, Cuccinelli spokesman Brian Gottstein said, “It's clear that the regulations were crafted in accordance with the law the General Assembly had passed, including the fact that clinics existing at the time could not legally be ‘grandfathered' from the regulations. ... This office has a duty is to defend Virginia's laws and regulations when they are challenged in court, and this case is no different.”

In court, though, Robinson said Cuccinelli “gave an interpretation that is contrary to the plain meaning of the statute” and that under the law, the regulations are to be applied to “design and construction” of new health care facilities, not existing ones.

More than 50 supporters of the clinic, clad in purple, attended a rally before the hearing outside the courthouse, waving signs that said “Stop the War on Women” and “Let doctors doctor.”

The clinic's director, Rosemary Codding, also attended. She said the clinic remains in operation, as the law gives clinics like hers a two-year grace period to comply with the new regulations.

“We're trying to do the work. We're trying to plan for what we need to put in place,” she said. The clinic has made some changes to try and comply with the new regulations, but is putting off some of the more expensive changes hopes that the regulations will be overturned. She said the new requirements, including separate ventilation systems and other retrofits, are expensive and ``do nothing to improve the care we give to women.”

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