Virginia’s physician-only law was a narrow exemption from Virginia’s general criminal ban on abortion. The general criminal ban on abortion prohibits “any person” from “produc[ing] [an] abortion or miscarriage,” and violation of this prohibition is a Class 4 felony with an “authorized punishment” of “imprisonment of not less than two years nor more than 10 years, and . . . a fine of not more than $100,000.” The physician-only law allowed for first-trimester abortions to be provided by physicians licensed by the Virginia Board of Medicine. Non-physicians, regardless of medical training, were not exempted from the general criminal ban on abortion; therefore, they were prohibited from providing abortions. In May 2019, the Eastern District of Virginia considered the constitutionality of the physician-only law in Falls Church Medical Center, LLC v. Oliver. In Falls Church Medical Center, four elective abortion providers challenged the physician-only law on the basis that it “unjustifiably limits ‘the pool of abortion providers, even while advanced practice clinicians . . . safely and routinely provide abortion care, including medication and aspiration abortion, in other states throughout the country.’” While the court initially granted the Plaintiffs’ Motion for Partial Summary Judgment, finding that “there is no genuine issue of material fact as to whether the Physician-Only Law poses a substantial burden on a woman’s access to first trimester abortion care,” just over a week later, the court vacated this decision to “facilitate the development of a full factual record that will enable the Court to better address this question.” Ultimately, while the court found that the evidence is “compelling” that advanced practice clinicians (“APCs”) can safely provide abortions, the court determined, based off tangentially related precedent, that the physician-only law was only a mere “inconvenien[ce] for some individuals,” not an undue burden. This physician-only law was purported to serve the state interest of protecting maternal health; however, a substantial body of peer-reviewed research shows there is no medical benefit to a physician providing the abortion service instead of a trained APC, such as a nurse practitioner, physician assistant, or certified nurse-midwife. While the limitation provided no medical benefit, it created a substantial burden to access to first-trimester abortions. The requirement arbitrarily and artificially reduced the field of abortion providers, which reduced access by increasing the logistical and actual cost of abortions and increasing wait time. Therefore, the physician-only law was an undue burden on abortion access. Following the decision, the Virginia General Assembly amended the physician-only law to extend the exemption to “any person jointly licensed by the Boards of Medicine and Nursing as a nurse practitioner.” The amended law expands the field of abortion providers; however, it still artificially and arbitrarily limits providers to only physicians and nurse practitioners. Thus, while the law as amended is less burdensome, it is still more burdensome than necessary to protect the health of persons seeking first-trimester abortions. Alternatively, in order to ensure only medical professionals with adequate training and experience are providing abortion services, the Virginia General Assembly should appeal the general criminal ban on abortion and instead rely on the existing scope of practice laws, which prohibit APCs from providing medical care outside their training.

This Comment seeks to critique the Falls Church Medical Center’s holding that Virginia’s first-trimester physician-only law is not an undue burden on the right to abortion. Part I is an overview of the physician-only law, discussing the historical roots of the law, the impacts of the law on access to first-trimester abortion, related laws in other jurisdictions, and a survey of research conducted on the overall safety and effectiveness of APCs as abortion providers. Part II is an overview of the Falls Church Medical Center’s three decisions. Part III is an undue burden analysis of the physician-only law, which shows, in light of the lack of health benefits of the physician-only law and the substantial burden to access it creates, the law should be found unconstitutional. Part IV analyzes the physician-only law as amended to include licensed nurse practitioners. Part V looks to Virginia’s scope of practice laws for APCs as an assurance that only medically trained persons with education, knowledge, and experience to provide first-trimester abortions will provide these abortions.

The power of state trial courts is tremendous. Charged with resolving 95% of the nation’s legal cases, state trial judges decide “the law” for thousands of litigants and criminal defendants every year, not to mention countless others impacted or bound by their decisions. Yet for decades state judges and academics have warned of a “crisis in the courts.” Many state courts today remain chronically underfunded, although they rarely ever compose more than 1% of the average state budget (and never more than 2%). State chief judges have decried the waning quality of state courts, arguing that inadequate funding has led to undue court delays, case backlogs, and poorly decided cases, placing state courts “at the tipping point of dysfunction.”

Yet despite nearly four decades of court funding litigation and legislative debate, state court reform efforts remain limited in many states by one sobering and largely neglected fact: local government is in the driver’s seat on funding state trial courts and determining the quality of justice. When court funding is decentralized, and local communities must pay for their own court services, the property and income wealth of the community determines the quality of justice in that particular area. Unsurprisingly, decentralized state court funding systems have tended to benefit only courts in affluent communities, where the highest tax revenue and per capita income base predominate, while courts in poorer locales are often left lacking sufficient funding and resources to operate efficiently. This fact casts a long shadow over the ideal of equal opportunity to justice. This Article refracts the problem of local state court funding through one vitally important, but until now unstudied, judicial resource: state trial court clerkships.

Judson R. Peverall *

Henry L. Chambers, Jr.*

Until Virginians approved Constitutional Amendment 1 in November 2020, the Virginia Constitution required the General Assembly redraw Virginia’s state legislative and congressional electoral districts every ten years in the wake of the national census.1 Redistricting culminated in the adoption of legislation redefining those districts. If the redistricting process had worked as intended after the 2010 census, electoral districts would have been redrawn and adopted by the General Assembly in 2011, approved by the Governor, and used for the ensuing decade. The redistricting process did not work as the Virginia Constitution contemplated. The General Assembly redrew, and the Governor approved, state Senate and House of Delegates districts in 2011. The state Senate districts remained substantially unchanged during the 2010s. Conversely, pursuant to litigation, a court-appointed special master  redrew many of the House of Delegates districts the General Assembly had drawn in 2011. The current House of Delegates districts were finally fully implemented in 2019. The General Assembly redrew, and the Governor approved, Virginia’s congressional districts in 2012, one year after the Virginia Constitution mandated. Pursuant to litigation, a court-appointed special master redrew multiple districts in that plan. The current congressional districts were finally fully implemented in 2016.

The chaos surrounding the post-2010 census redistricting process has led to uncertainty regarding the post-2020 census redistricting process. The last redistricting process helped trigger a constitutional amendment that gives primary redistricting responsibility to a newly created Virginia Redistricting Commission (“VRC”). The Virginia Constitution now requires the VRC redraw electoral districts in the wake of the 2020 census, approve the districts by supermajority, and submit them to the General Assembly. The General Assembly must enact the VRC’s redistricted maps without changes before the new districts can be used. The Supreme Court of Virginia would draw the districts if the VRC could not agree on maps to submit to the General Assembly or if the General Assembly declined to approve the VRC’s maps. The Governor of Virginia no longer has any role in redistricting.

Post-2020 census redistricting is uncertain because the substantive law of redistricting has changed over the last decade. The laws that governed redistricting a decade ago—the Virginia Constitution, the Fourteenth and Fifteenth Amendments, and the Federal Voting Rights Act—will govern redistricting in 2021. However, significant legal developments in the last decade have changed and clarified the doctrine regarding those enactments. For example, the Supreme Court of the United States deemed part of the Voting Rights Act unconstitutional, releasing Virginia from compliance with the Act’s preclearance requirement to which Virginia had been subject for over fifty years. Preclearance required certain jurisdictions to ask permission from the United States Department of Justice (“DOJ”) or the United States District Court for the District of Columbia before using new election laws or making voting changes, such as using new redistricting maps to ensure those changes did not harm the rights of minority voters. That change may significantly alter how race is considered in redistricting. Whatever entity redraws the Commonwealth’s electoral districts in 2021 will need to comply with fewer rules than the General Assembly did a decade ago, but that may not make redistricting easier.

The General Assembly was aware of the complexity surrounding 2021 redistricting and used its 2020 session to prepare. It passed legislation directing how electoral districts are to be redrawn and approved and sent the aforementioned constitutional amendment to voters for approval. The new legislation is sensible and addresses some issues of partisanship and race in redistricting but does not fully address the changes in the law of redistricting over the last decade that might affect the substance of the upcoming redistricting. The General Assembly may use its 2021 session to address lingering issues. However, it should have considered and resolved those issues in 2020. Addressing lingering issues in the 2021 session, as the redistricting process begins, may be deemed contrary to an attempt to eliminate politics from the redistricting process.

This Essay considers the changes in redistricting law that have occurred since Virginia redrew its electoral districts after the 2010 census, what those changes might mean for Virginia’s redistricting in 2021, and how the General Assembly did and did not address those changes in its 2020 session. Part I discusses the legal regime in place for redistricting after the 2010 census. Part II notes how the General Assembly redistricted after the 2010 census. Part III explains how the law of redistricting has changed since Virginia last redistricted. Part IV analyzes how the General Assembly used its 2020 session to prepare for redistricting in 2021, noting the issues it addressed and those it did not address. 

*Professor of Law, University of Richmond School of Law. The author thanks Joleen Traynor and Zanas Talley for their research assistance.

The 2020 Virginia General Assembly addressed a wide variety of matters affecting wills, trusts, and estates, ranging from a new article of the Virginia Uniform Trust Code and an expanded partition procedure to a $2 increase in the circuit court clerk’s recordation fees. Among the most helpful were new rules that clarify and expand the powers and responsibilities of non-trustees who may direct the trustee on certain issues and a revised procedure for partitioning real property while protecting the rights and interests of co-owners. The legislature also dealt with fiduciary issues, including express authorization for multiple-party bank accounts, additional duties for children’s guardians ad litem, relationships that may disqualify a lawyer as guardian or conservator, protections against suspected financial abuse of adults, reliance on qualification certificates, and requirements for certain fiduciaries’ accounts. The General Assembly also authorized beneficiary designations for ABLE savings accounts, allowed the substitution of a bank for a related trust company in multiple fiduciary roles, broadened disclosure rules for certain gifts to state colleges and universities, expanded the list of documents a notary may accept as identification, and allowed transfer on death (“T.O.D.”) designations for motor vehicles with multiple owners.

J. William Gray, Jr. *
Katherine E. Ramsey **

 * Senior Counsel, Whiteford Taylor & Preston LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Member, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

This Article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its Parts cover legislative activity, judicial decisions, and selected opinions and other pronouncements from the Virginia Department of Taxation (the “Tax Department” or “Department of Taxation”) and the Attorney General of Virginia over the past year. Part I of this Article addresses state taxes. Part II covers local taxes, including real and tangible personal property taxes, license taxes, recordation taxes, and administrative local tax procedures. The overall purpose of this Article is to provide Virginia tax and general practitioners with a concise overview of the recent developments in Virginia taxation that are most likely to impact their clients. However, it does not address many of the numerous minor, locality-specific, or technical legislative changes to Title 58.1 of the Virginia Code, which covers taxation. 

Craig D. Bell *
Michael H. Brady **

* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. 

** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, The University of Texas School of Law; B.S., 2006, Liberty University. Following law school, Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009–2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011–2014, joining McGuireWoods LLP in 2014.