Testimony of Denise M. Burke, Esq.
Before the House Committee On Health, Welfare and Institutions, Subcommittee #3
January 26, 2010
I am Denise M. Burke, Vice President of Legal Affairs for Americans United for Life Action (AUL Action). AUL Action is the legislative arm of Americans United for Life (AUL). The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.
I have extensive experience in constitutional law generally and with abortion-related laws and jurisprudence in particular. My experience has included both legislative work and federal and state litigation concerning the constitutionality of abortion-related laws. Specifically, I have worked with numerous states on subsequently-enacted legislation that regulates facilities performing abortions and on proposed (but, ultimately, rejected) regulation of pregnancy care centers (PCCs) (commonly-referred to as “crisis pregnancy centers”).
I have thoroughly reviewed House Bill 452 (HB 452), relating to the proposed regulation of so-called “limited service pregnancy centers” in Virginia, and am offering my testimony to this Subcommittee as an expert in constitutional law and as an expert on laws seeking to regulate centers providing pregnancy-related medical care. I appreciate this opportunity to present meaningful testimony on the constitutionality and potential legal ramifications of this problematic legislation.
It is my opinion that HB 452 is unconstitutional and, therefore, that this Subcommittee should not recommend it to the full Senate Education and Health Committee. Specifically, the language of this legislation is poorly-drafted and unconstitutionally vague, and, if enacted, will likely be challenged in federal and/or state court, necessitating a substantial and unnecessary expenditure of Commonwealth funds in its defense.
To assist you in evaluating HB 452, I am providing specific testimony on (1) the unconstitutionally vague language in the proposed legislation; (2) important omissions in the legislation’s language that also present significant legal issues and questions; and (3) an overall lack of precision in drafting so pervasive that the proposed legislation does not even appropriately define what the “regist[ration]” requirements for regulated centers are and who will be the Commonwealth’s enforcement “arm” for requirements of SB 188.
Unconstitutionally Vague Language
HB 452 purports (but, as outlined herein, fails to appropriately) delineate standards for “limited service pregnancy centers” and to impose civil penalties for noncompliance. Specifically, it imposes a civil fine of up $500 per verified violation against an agent, employee, or volunteer of a center and mandates the loss of any proceeds that the center received or may receive from the Virginia Choose Life Fund for the year in which the violation occurred. Clearly, this involves a significant, potential pecuniary loss to regulated centers.
It is a well-established legal principle that laws which may result in such losses or penalties must be sufficiently specific so as to put the regulated individuals and entities – those who are potentially subject to such losses or penalties – on sufficient notice as to how to conform their conduct to the laws’ requirements. Moreover, the laws must be drafted in such a way as to prevent potential arbitrary and standardless enforcement by officials of the Commonwealth. Under what has been termed the “vagueness doctrine,” a law which does not fairly inform a person of what is commanded or prohibited is unconstitutional as violative of fundamental (constitutional) due process.
Simply, “due process” as guaranteed by both the United States and Virginia Constitutions requires that a law be sufficiently precise to provide both fair notice to citizens as to prohibited or required activities and to provide minimal guidelines for enforcement. SB 118 does neither and, as such, does not “give the person of ordinary intelligence a reasonable opportunity” to know what is required or prohibited. See e.g. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
Specific examples of undefined and problematic language include:
Section 32.1-162.15:1. provides that "[f]actually and medically accurate information" means “information that meets the current standard of care and is: (i) supported by research conducted in compliance with accepted scientific methods; (ii) recognized as accurate by leading professional organizations and agencies with relevant expertise in the field; and (iii) published in a peer-reviewed journal, if appropriate.”
This language is constitutionally fatal for several reasons:
(a) It fails to adequately define “the current standard of care.” It is not known or evident what community is defining the “standard of care.” Is it the “limited service pregnancy centers” themselves, is it abortion providers, or is it a wider community of medical providers such as obstetricians and gynecologists? Is it a community within the Commonwealth of Virginia alone or is it some nationwide community of medical providers? Clearly, this entirely subjective determination will significantly impact and even alter the “standard of care” that the centers are supposed to provide or look to for guidance. This deficiency alone renders the legislation (as written) unconstitutionally vague.
(b) Similarly, subsection (i) purports to require information that is “supported by research and conducted in compliance with accepted scientific methods.” It is entirely left open to individual and thus subjective determinations what information will adequately meet this requirement. If the provision of certain information is supported by only one study (but rejected by other studies) does it still have to be given? How many scientific studies must reject the necessity or importance of certain information before it need not be given – one, a quarter of the relevant students, more, or less? Under the provision (as written), this question is not answered and this omission is legally unacceptable.
(c) Subsection (ii) requires that information given must be “recognized as accurate by leading professional organizations and agencies with relevant expertise in the field.” Again, who are these “leading professional organizations” – organizations representing “limited service pregnancy centers,” organizations that promote abortion, or something else entirely?
These are not fanciful questions – as proponents of this legislation might argue – but legitimate, unanswered questions as to the breadth, reach, and intent of this legislation: Questions that cannot be sufficiently answered using only the particular language of the legislation itself, unanswered questions that render the legislation unconstitutional vague, and questions that necessitate this Subcommittee’s rejection of HB 452 as drafted.
Critically, the abject lack of precision in the legislation’s language also results in a complete lack of objective and precise standards of enforcement to be used by Commonwealth officials in enforcing the new law and its penalties. This lack of precision could subject regulated centers to arbitrary enforcement and baseless and harassing complaints. Simply, our laws and sense of inherent fairness do not permit such uncertainty.
Clearly, HB 452 violates clear and well-established legal principles and is, thus, unconstitutional.
Important Omissions: Inaccurate and Missing Definitions
As intended by its sponsors, HB 452 is designed to regulate the provision of information by “limited service pregnancy centers” (or the failure to provide certain information) on “abortion,” “emergency contraception,” and “contraception.” However, the legislation itself does not adequately define either “abortion” or “emergency contraception.” Nor is either term fully-defined elsewhere in Virginia law.
In regards to the term “abortion,” the legislation simply provides "‘[a]bortion’ or ‘abortion service’ means any procedure intended to terminate a pregnancy, or any referral for such procedures.” This is not a medically-accepted definition of “abortion”1 nor does it independently or adequately define the term. For example, does the term “procedure” include both surgical and medical/chemical forms of abortion?
Moreover, the description/definition of “limited service pregnancy center” in Section 32.1-162.15:1 includes the term “emergency contraception,” but that term is nowhere defined in the legislation or in Virginia law.
Regulated centers cannot be expected to guess at the meaning of these important terms and, thus, hope that they are properly complying with the law.
In sum, HB 452 is very poorly drafted, lacks medically- and legally-acceptable definitions, and sets standards so imprecise and subjective as to render it unconstitutionally vague.
Undefined Requirements and Enforcement Agencies
Further, as drafted, HB 452 does not even purport to adequately define its requirements or name responsible agencies.
First, Section 32.1-162.15:2(A) states that “[i]t shall be unlawful for any person to operate a limited service pregnancy center without first registering with the Department.” (Emphasis added). However, as drafted, it fails to define either (1) what is meant by or required for “registering” or (2) even clearly name the responsible “Department.”
Later, it fails to (again) name the agency or department within the Commonwealth that is tasked with the investigation of alleged violations and the enforcement of its requirements. Specifically, Section 32.1-162.15:2(C) provides that “[a]ny person who believes that a violation of this article has occurred may file a complaint with the Department.” (Emphasis added). However, it is not clear which “Department” of the Commonwealth it purports to reference. The term “Department” is not defined in the “Definitions,” Section of 32.1-162.15:1, as it should be.
From the text of the legislation alone, the term “Department” could mean: (1) the Department of Motor Vehicles (which is involved in the administration of the Virginia Choose Life Fund), see references in Section 32.1-162.15:2(B)(3) and Section 32.1-162.15:2(C); (2) the Department of Accounts, see reference in improperly numbered (or unnumbered) section seeking to amend § 3 of Chapter 755 of the Acts of Assembly of 2009 (authority for the Commonwealth’s “Choose Life” specialty license plate program and distribution of the proceeds); or (3) the Department of Health, see reference in improperly numbered (or unnumbered) section seeking to amend § 3 of Chapter 755 of the Acts of Assembly of 2009.
It is not sufficiently clear who the “Department” is from the face of this often-confusing, proposed legislation.
Further, Section 32.1-162.15:2(E) provides “[t]he Board shall promulgate regulations for the registration of limited service pregnancy centers pursuant to this article” (emphasis added), but the legislation never defines who the “Board” is or from where it derives the statutory or other legal authority to promulgate or proscribe such “regulations.”
These deficiencies are equally inexcusable and inexplicable. “Limited service pregnancy centers” (as defined by this legislation) should be able, looking solely at the language of this legislation, discern the legal standards they must meet. Clearly, in the case of HB 452, they cannot.
Conclusion: Potential Ramifications of Passage for the Commonwealth
Given all of its obvious and plentiful deficiencies, HB 452, if enacted, would certainly be challenged by regulated centers and, given the problems that I have briefly outlined, those legal challenges would likely be successful – whether brought in federal or state court. This legislation is ripe for both “facial” challenges (lawsuits brought before the law’s enforcement by the Commonwealth, challenging the constitutionality of the law as written) and as-applied challenges (challenges to any subsequent enforcement actions brought by the Commonwealth). Defense of such challenges would involve a significant and, ultimately, unnecessary expenditure of taxpayer funds and of time by Commonwealth officials.
Clearly, HB 452 is unconstitutional and, as explained herein and by other evidence presented to this Subcommittee, involves an unnecessary expenditure of resources. As such, it should be summarily rejected by this Subcommittee. Thank you for the opportunity to present testimony on HB 452.
1. Conversely, an example of a medically- and legally-acceptable definition of abortion (drawn from other states’ abortion-related laws) would be
“Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. Such use, prescription, or means is not an abortion if done with the intent to:
(1) Save the life or preserve the health of the unborn child;
(2) Remove a dead unborn child caused by spontaneous abortion; or
(3) Remove an ectopic pregnancy.
