Abortion Industry’s Latest Strategy Dismissed in Virginia Lawsuit

Mary E. Harned, J.D.  

Last week, a federal court held that a lawsuit challenging multiple pro-life laws in Virginia may proceed. However, the court rightfully dismissed the plaintiffs’ “cumulative undue burden” claim—the centerpiece of the abortion industry’s latest strategy to undermine laws written to protect unborn children and their mothers.


While it is common for abortion providers to challenge pro-life laws shortly after they are enacted, in Falls Church Medical Center v. Oliver, five Virginia abortion providers[i] are challenging multiple laws and regulations enacted by the state over the course of four decades. The plaintiffs are challenging the provisions individually and collectively as a “regulatory regimen” which they argue poses a “substantial obstacle to the provision of abortion services, in violation of the Fourteenth Amendment to the United States Constitution.”


This broad claim, styled “Substantive Due Process – Cumulative Burden,” alleges that the collective effect of the regulations and laws imposes an undue burden on a woman’s abortion right. A single successful lawsuit based on this theory could invalidate virtually every protection for unborn children and their mothers enacted in a state.


While abortion advocates have filed similar lawsuits in several other states, all in the early stages of litigation, the Eastern District of Virginia is the first court to dismiss the cumulative undue burden claim. Judge Henry E. Hudson wrote that the claim “appears to articulate a theory of proof as opposed to a substantive claim.” He explains:


[The claim] urges the Court to assess the collective burden imposed by statutes and regulations at issue in the other counts in determining whether they pose a substantial obstacle to the fundamental right to choose abortion before viability. . . . [t]his type of freestanding, collective claim is unfamiliar to abortion jurisprudence.


In dismissing the claim, the court concluded that while plaintiffs are “free to argue the collective impact of the statutes and regulations at issue as they affect the burden imposed by each claim,” the “cumulative burden” will not be considered a separate claim for relief.


While the court’s dismissal of this claim is good news, a long road remains for the State of Virginia. The Plaintiffs are seeking to enjoin:


  • The regulation of medical facilities that provide five or more first-trimester abortions in a month as a type of hospital (Va. Code Ann. 32.1-127(B)(1));


  • The requirement that second-trimester abortions be performed in licensed hospitals (Va. Code Ann. § 18.2-73);


  • The requirement that only physicians perform abortions (Va. Code Ann. § 18.2-72);


  • Criminal and civil penalties for failure to comply with federal and local laws and regulations (Va. Code Ann. § 18.2-71); and


  • Informed consent and reflection requirements prior to abortion, with the offer to view an ultrasound and hear fetal heart tones.


The court noted that two of the challenged provisions—the second-trimester hospital requirement and the physician-only requirement—are well established in U.S. Supreme Court precedent as facially constitutional provisions. The plaintiffs are therefore not permitted to challenge the facial constitutionality of these laws, but may challenge how the laws are applied to them.


The parties will now resume the lengthy discovery process.



[i] Falls Church Medical Center, LLC; Whole Woman’s Health Alliance; All Women’s Richmond, Inc.; Virginia League for Planned Parenthood; and Dr. Jane Doe.


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