ARLINGTON, Va. (WUSA) -- Abortion rights supporters in Virginia are cheering after they won a small, first step in a challenge to strict, new state regulations that require abortion clinics meet hospital standards.
An Arlington judge rejected a motion from Attorney General Ken Cuccinelli and the Virginia Board of Health seeking to toss out a legal challenge to the regulations. It means the case will now move forward.
"Whoa!" Cheered Rosemary Codding, director of the Falls Church Healthcare Center (FCHC) which brought the lawsuit, technically called an appeal. Codding said the ruling gave her immense hope.
"It's just like the turning tide. It has been such an oppressive environment for three years for women's health. This is an immense spiritual uplifting. And, as a woman of very strong faith, I know God is with me. And I know that he has given me courage to continue in this battle," said Codding.
She and about 50 supporters, many dressed in purple, held a rally outside the courthouse, waving signs that said "Stop the War on Women" and "Let doctors doctor."
Judge, Benjamin N.A. Kendrick said he ruled as he did to allow the lawsuit to get a full hearing so that appellate courts can ultimately decide the matter. His ruling was mostly based on procedure, not the merits of the case.
The clinic's lawyers were encouraged by the decision.
"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."
The regulations require abortion providers to meet many of the same standards imposed on hospitals, including wider hallways and additional closets. Codding and other providers say the measures are onerous, unnecessary and prohibitively expensive. They say the regulations will force clinics out of business, restricting or delaying access to abortion. They say delaying care increases risks and does not improve safety.
Last year, in a preliminary vote, the Board of Healthexempted existing clinics from the new regulations. But Cuccinelli's officeadvised the board that they had no legal authority to do so and warned that he could not represent them in court if they left the exemption in and were sued.
On April 1, 2012, the board voted to apply the strict standards to existing clinics.
FCHC attorney Larry Roberts said Cuccinelli intimidated the Board of Health.
"The board was bullied into adopting regulations that it did not intend to adopt," said Rogers.
At the hearing, Solicitor General Duncan Getchell, representing the board of health, said his goal was to limit some of the arguments that the clinic's lawyers could raise at trial. He said the judge should only consider the legality of the regulations that were approved. He said the judge has no authority to consider whether the board could have exempted existing clinics.
But the clinic's lawyer, Michael Robinson, said the board's actions must be understood in their full context. The board's preliminary vote to exempt existing clinics, after hearing medical testimony that to do so 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 on the clinic's suit that Getchell sought, though he could do so later.
After Wednesday's hearing, Cuccinelli spokesman Brian Gottstein released this statement:
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. The law's patron and other members of the General Assembly testified to that fact at the regulatory hearings. 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.
This office's job was to advise the board how to craft the regulations in accordance with the law. Any claim that the board of health was bullied into adopting the regulation is contradicted by media interviews given by board members themselves.
In court, 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.
Rosemary Codding said the clinic remains in operation, as the law gives clinics like hers a two-year grace period to comply with the new regulations. She said the clinic has made some changes to try to comply with the new regulations, but does not have the funds for the more expensive required renovations. She's says she's hoping the new regulations will be overturned.
The November election could have an impact. Attorney Larry Roberts said that an attorney general with a different view could simply not fight Codding's lawsuit.