What's Mark Herring Doing?

By now you’ve probably heard that on Friday, Attorney General Mark Herring filed a motion asking a federal court to dismiss a lawsuit brought by the $1 billion abortion industry against Virginia’s pro-life laws. 

Some may have been surprised at the Attorney General’s action, given he’s one of the most pro-abortion elected officials in Virginia history.  I wasn’t.  And I can say why in three words.

Justice Kennedy retired.

The lawsuit, brought by Planned Parenthood, the ACLU and others, asked the court to find unconstitutional Virginia’s abortion center safety standards, 24-hour waiting period, informed consent, a requirement that only doctors can perform abortions and a requirement that second and third-trimester abortions take place in hospitals. (Read our recent blog about it here.) The abortion industry was counting on Kennedy, the swing vote in two of the most atrocious pro-abortion decisions since Roe v. WadePlanned Parenthood v. Casey in 1992 and Hellerstedt two years ago, to once again come to its rescue. 

The Casey decision gave us the “undue burden” concept that claimed any law that caused an “undue burden” for a woman seeking an abortion was unconstitutional.  Hellerstedt found Texas abortion center safety standards unconstitutional because, in their words, they were, guess what- an “undue burden.”

But Mark Herring clearly saw that with Kennedy’s retirement and the possibility that his replacement will most likely come to very different conclusions when it comes to abortion laws, the lawsuit brought by the abortion industry could actually give the Supreme Court the opportunity to uphold all of Virginia’s reasonable pro-life laws.  He simply doesn’t want to take that risk.

But that’s not the only deception in Mark Herring’s motion.

Hidden deep within his office’s “analysis” is the Attorney General’s handout to the abortion industry: the argument that because abortion centers are defined as “hospitals” in the Code, it is legal for these centers to not only perform abortions during the first trimester, but during the second trimester as well.

The problem, of course, is that this wasn’t the General Assembly’s intent at all, as evidenced by the past six years of implementation of the 2011 law.  In fact, there are several different types of “hospitals” in Virginia law, including nursing homes and mental health facilities – places where you certainly wouldn’t want to have surgery!  Neither of those, nor abortion centers, are “general” hospitals, which is where the General Assembly always intended second and third-trimester abortions to take place because of the possibility of serious complications. 

But the Attorney General had to give his friends at Planned Parenthood something, so he once again chose to undermine Virginia law in a way that favors the abortion industry’s bottom line – and puts women’s health at risk. 

Despite the Attorney General’s actions, The Family Foundation is preparing to help defend our hard-fought pro-life laws.  Perhaps a lawsuit that was intended for evil will end up being used for good.