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Henrico judge's ruling allows case over state abortion regulations to proceed
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Henrico judge's ruling allows case over state abortion regulations to proceed

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Two people who opposed changes to abortion clinic regulations enacted under Gov. Terry McAuliffe can move ahead with a lawsuit challenging the rules, a Henrico County judge ruled this week.

Circuit Judge John Marshall said in a written decision Monday that a Richmond woman, Itzel A. Melendez, has legal standing to challenge the amended regulations as does Megan C. Getter, a Rockville resident who is a member of the Virginia State Board of Health.

Marshall, however, found that two other plaintiffs who brought the litigation — Del. Kathy J. Byron, R-Bedford, and Board of Health member Henry N. Kuhlman — are not affected by the regulations and therefore can’t be part of the case as it proceeds in Henrico Circuit Court.

“We’re elated over the ruling because it means the case will continue forward,” said Dan Carrell, an attorney for the four people who challenged the McAuliffe-era rules. “We did not need all four petitioners to proceed.”

Critics have taken aim at the rollback under the Democratic governor of abortion clinic rules that had been adopted under his Republican predecessor, Gov. Bob McDonnell. In October, the Virginia Board of Health voted 11-4 to repeal rules that had required facilities providing five or more abortions a month to meet hospital-like building standards, among other restrictions. Abortion opponents wanted to keep the McDonnell-era rules, arguing that they were necessary to ensure health and safety of the facilities. Those who support access to abortion, however, argued the regulations adopted under McDonnell were merely a ruse to limit access to the procedure and that they placed an undue burden on the clinics.

The lawsuit itself doesn’t dwell on what rules should be placed on the state’s 14 abortion clinics. Instead, the litigation focuses narrowly on the process that was used to enact the amended rules under the Democratic governor. It essentially argues that the process to adopt the latest rules was flawed, so they should be thrown out.

The litigation, filed in April, said state health officials made nearly two dozen procedural mistakes when they changed the state’s code overseeing abortion clinics. Attorney General Mark R. Herring’s office, which defended state health officials, said in court papers that the people who brought the lawsuit haven’t shown that the procedures used ran afoul of the law.

This week’s decision does not delve into the arguments on whether procedures were properly followed. Instead, Marshall’s decision allows the case to clear an initial hurdle of whether any of the opponents of the new rules could proceed with their case, Carrell said.

The state attorney general’s office wouldn’t comment at length about the judge’s ruling.

“We have no further comment other than we’re reviewing the judge’s decision and are going to determine how best to move forward,” said Lara Sisselman, a spokeswoman for the attorney general.

Samuel T. Towell, a deputy attorney general, argued at an Aug. 11 court hearing that the lawsuit should be tossed because the four people who brought the case aren’t even affected by the new rules.

“What they have is an intense political and passionate disagreement with the regulations,” Towell said.

But Carrell argued each appellant was indeed affected by the new rules in different ways. Melendez is identified in the plaintiff’s lawsuit as a woman of child-bearing age who feels she could not use the facilities because they are unsafe amid the repeal of the McDonnell-era regulations. Getter, in addition to being a member of the Board of Health who opposed the new rules, is also a woman of child-bearing age who would not feel safe using the facilities under health and safety standards that have been “significantly diminished,” the lawsuit says.

Byron was affected because she authored the initial 2011 law regulating clinics as a type of hospital and the new regulations under McAuliffe undercut the intent of that measure, the litigation says. Kuhlman was a Board of Health member who opposed the new rules and who was an “unwilling participant in the board’s actions,” the lawsuit said.

Marshall found that Melendez and Getter are affected by the regulations because they are women of child-bearing age who have said the new rules impact their decisions on whether to use one of the facilities, but he rejected the plaintiff’s arguments that Byron and Kuhlman were impacted by the rules.

The conservative Family Foundation is paying for Melendez’s legal bills in the case, but it’s not one of the plaintiffs of the lawsuit. The case was brought in Henrico because the state Board of Health regularly conducts business in the county and because Kuhlman is a Henrico resident.

A new court date for further arguments in the case has not yet been scheduled.

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