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Out-of-town visitors to Bristol usually have fun with its split-state personality, posing for pictures in the middle of State Street, one foot in Tennessee and the other in Virginia.
But in the months since the U.S. Supreme Court’s Dobbs decision reversed 50 years of federal protection for abortion, the tone in Bristol has turned more serious, as activists have seized on the border city as a microcosm of the national debate.
Abortion rights supporters point to the fact that a doctor’s office on the Tennessee side had to stop performing abortions as proof that women’s rights are under attack, and that those rights will continue to be eroded unless action is taken.
Abortion opponents point to the subsequent opening of an abortion clinic on the Virginia side as proof that states where abortion remains legal will be overrun by clinics unless action is taken.
After years of watching the abortion debate play out on the national and state stages, those opponents have turned to perhaps the most local of all local government functions – zoning – to seek redress. A Richmond-based anti-abortion group drafted a proposed amendment to Bristol, Virginia’s zoning ordinance that would prohibit any additional abortion clinics from opening in the city and would keep the existing clinic from expanding. On Oct. 25, a member of the city council brought the proposal to his colleagues in front of a capacity crowd. (The proposal appears on page 55 of the city council’s packet.) On Monday, the planning commission will get its first look at it.
Opponents of the move have questioned whether the city has the authority to take such action. Counties and cities in Virginia have only the powers explicitly granted them by the state and, they say, regulating abortion clinics isn’t one of them. Supporters say that state code must be read more broadly – that protecting life is at the heart of land-use law, and that preventing abortions is part of protecting life.
The proposed ordinance
Lawyers with the Founding Freedoms Law Center, the legal arm of the Richmond-based Family Foundation, drafted a proposed ordinance change for the city of Bristol that would bar abortion clinics from opening in the city in the future and would prohibit the city’s single existing clinic from expanding:
No land, building, structure or other premises located within any zoning district of the City of Bristol may be used to carry out any practice, process, or procedure that is designed to intentionally cause the death or termination of a pre-born human life at any stage of development. The already existing use of any buildings or structures for such purposes must conform to this regulation whenever they are enlarged, extended, reconstructed, or structurally altered, and any nonconforming building or structure may not be moved on the same lot or to any other lot in order to carry out the nonconforming use.
They later amended the proposed ordinance in response to a memo to the city from the ACLU that said the language of the proposal was so broad that it could affect some types of contraception, fertility treatments or miscarriage treatments:
No land, building, structure or other premises located within any zoning district of the City of Bristol may be used to carry out any practice, process, or procedure that is designed to intentionally cause the death or termination of a pre-born human life at any stage of development following conception. The prior existing use of any land, buildings or structures for such purposes must conform to this ordinance whenever they are enlarged, extended, reconstructed, or structurally altered, and any nonconforming building or structure may not be moved on the same lot or to any other lot in order to carry out the nonconforming use. Nothing in this ordinance shall be construed to prevent a licensed and qualified medical provider from taking actions calculated and necessary to save a pregnant mother from imminent loss of life.
They also responded with their own legal memo.
Each side has accused the other of letting outsiders set Bristol’s agenda.
Abortion rights activists, and several local officials, said that while a small group of protesters had regularly demonstrated at both the Tennessee and Virginia clinics, they’d heard of no broader grassroots anti-abortion efforts until the Family Foundation got involved.
The conservative nonprofit, which has taken up issues including transgender student policies, gay marriage and critical race theory, not only wrote the proposed amendment and the resolution supporting it, but it organized a rally before the city council meeting and reached out to local churches. It has provided talking points and posted a model resolution on its website for other localities to use. It has voiced its support for several nearby counties that recently declared themselves to be pro-life sanctuaries.
Victoria Cobb, the organization’s president, said that the Family Foundation is just an adviser.
“All we’re doing is helping them know how it’s been done elsewhere, how best to word it. It’s a simple matter of coming alongside the citizens here and helping them do what they want to do,” she said.
The Family Foundation, meanwhile, says in its talking points memo that Bristol residents shouldn’t allow “outside groups and abortion industries” to turn their city into an abortion destination, and it points to the Virginia clinic as an example of outsiders looking to “invade our community.”
Diane Derzis, who owns Bristol Women’s Health, lives in Alabama. She has operated abortion clinics across the country, and she makes no secret of her desire to open more locations as states continue to restrict access to abortion.
Most of her clinics have drawn little attention outside their immediate communities, but there have been two significant exceptions: The Alabama clinic that was bombed by Eric Rudolph in 1998 was one of hers. And so was the Jackson Women’s Health Organization, the Mississippi clinic that was at the center of the landmark Dobbs case.
“Diane Derzis is no stranger to any of this,” said Stephanie Rosenwinge, who volunteered at the Tennessee clinic and now works at the Virginia one. “She is a fierce, fierce warrior.”
The Oct. 25 city council meeting drew a capacity crowd. Speaker after speaker – 19 of them, about half of them Bristol residents – stood up in support of the proposal. Just three opposed it. To loud cheers from the gallery, the five-member council unanimously voted to send the proposal on to the city attorney and the planning commission for review.
Mayor Anthony Farnum said in an interview last week that abortion isn’t something he’d ever expected to deal with as a city official. When he was campaigning in 2020, people would ask him if he was a Democrat or a Republican. He’d tell them that party affiliation really didn’t matter so much on the city council.
“I would say, ‘We don’t have really any control over immigration, health care, abortion, those big national topics.’ … I guess I can’t say that anymore.”
* * *
One clinic closes, another one opens amid a challenging legal landscape
The idea for Bristol Women’s Health started in Bristol, Tennessee, not in Alabama.
Dr. Wesley Adams and a partner had opened a women’s health practice in Tennessee in 1980, and over the years the office had offered abortions alongside routine gynecological exams, infertility treatments and obstetric services.
But Adams had been watching Tennessee make access to abortions more restrictive. The state mandated counseling and 48-hour waiting periods. It forbade abortions in response to a genetic anomaly or for the purpose of race or sex selection. It required the burial or cremation of fetal remains.
In 2019 the state legislature passed a so-called “trigger” law: If Roe fell, abortions would be illegal in Tennessee, except to prevent death or serious and permanent bodily injury to the mother.
So over the past year or so, Adams started to prepare. He procured a medical license in Virginia, where abortions are legal through the second trimester. Early this year, as he mulled the idea of expanding his work across the state line, he reached out to an old friend.
Derzis said the call from Adams, whom she’s known for decades, was serendipitous. At the time, she owned clinics in Mississippi, Georgia and Richmond, and she had been making plans to open clinics in states that continued to allow abortions.
As soon as Donald Trump was elected in 2016, she said, she knew “it was over.”
“You would have to be completely out of it to have not realized that’s what was going to happen,” she said. “So we were ready.”
In March, she came up to Bristol and they scouted locations, eventually settling on a nondescript single-story brick building across Gate City Highway from the old mall, which soon would reopen as the Bristol Casino. They signed a five-year lease with an option for three more, Adams said. They paid a year’s rent up front, Derzis said.
In May, the draft of the Dobbs decision was leaked.
Adams and his wife launched a GoFundMe campaign, “Keep Abortion Safe and Legal In Bristol.” They were shocked when it hit $10,000, Jo Adams said; before long, it had topped $100,000, with donations ranging from $5 to $2,000.
The money paid for renovations and equipment. They hired a small staff, some of them volunteers who had escorted patients at the Tennessee clinic. Roe fell in June, and Tennessee’s near-absolute ban on abortions took effect in August.
The Virginia clinic was open and seeing patients, but Adams was no longer part of it.
His plan had been to keep seeing longtime patients in Tennessee and perform abortions a couple of days a week at the Virginia one. He had a very small staff – a full-time nurse, a part-time employee and his wife – but figured the split schedule would work, since up to 90% of the abortions he’d been doing were medical ones – those using pills rather than surgery – that required very little hands-on time.
But then his malpractice insurer said it wouldn’t cover him. He pressed the underwriter to tell him why, since he’d been a good client for decades.
“They said, ‘Well, it’s just the climate,’” he said. “That’s all I could get out of them.”
Adams figures he could have gotten insurance elsewhere, but his legal advisers – he has “more attorneys than there are M&Ms in an M&M bag,” he said – warned him of potential pitfalls.
Could he, a Tennessee resident, get in trouble for conducting abortions on Tennessee women at a Virginia clinic? What about women who took the abortion pill in Virginia but then miscarried in Tennessee? Would Tennessee pass a law like the one in Texas that allows citizens to sue anyone who helps someone obtain an abortion?
“There are a lot of these sorts of interstate issues at play, post-Dobbs, that we are looking into,” said Geri Greenspan, an attorney with the American Civil Liberties Union of Virginia. She said the ACLU has been in contact with people in Bristol, but she declined to comment further on any legal advice it might have provided.
Americans should expect to see a “new abortion battleground,” according to the authors of a forthcoming paper in The Columbia Law Review. They predict that anti-abortion states will try to impose civil or criminal liability for those who travel out of state for abortion care, or for those who provide that care or help them get it. Meanwhile, states that support abortion rights will pass laws that protect their providers from such legal sanctions.
In a legal landscape filled with unknowns, Adams gave up his 50% share in the clinic. His Tennessee clinic closes Nov. 30, and he’s still pondering his future. He doesn’t particularly like sitting “in the bleachers,” he said.
“It’s just kind of hard to take,” he said. “It was my idea, my baby. I had the whole thing planned out. It’s kind of hard to not be hands-on. We’ve got a hundred lawyers who said we’ll defend you pro bono if you get arrested, but we really just don’t want to get carried off in handcuffs and be on TV every night for the next five years.”
He said he talks every day to Derzis, whose own history with abortion care is at least as long as his. She started working at an abortion clinic in 1975, less than a year after she’d had an abortion herself at age 20. The abortion was legal, but the doctor’s dismissive attitude has stuck with her for almost 50 years.
“The bottom line is, if a woman cannot make this decision, she cannot make any decision in her life,” Derzis said recently. “I know that personally. I remember that feeling of desperation. And I had options. Women have to be given that option.”
Over the years, as the attacks on her clinics and her employees mounted, she’s thought of quitting, she said, but she’s too stubborn – and too angry.
“The rage is what keeps me going now,” she said. “If I really want to admit that, that’s what it is. It’s just absolute rage that you think I am less because I am a woman, and if I am a pregnant woman, I’m even less than that. That’s the bottom line.”
So instead of quitting, she has doubled down. She moved the Jackson clinic to Las Cruces, New Mexico, where abortion remains legal.
She grew up in the Shenandoah Valley, and she harbors no illusions about the future of abortion rights in Virginia. The 2022 General Assembly session, when Republicans controlled the House and Democrats the Senate, saw the failure of a slate of bills that would have restricted abortions, including legislation that would have set a 20-week ban on abortions and brought a return to mandated counseling, 24-hour waiting periods and required ultrasounds.
But next year’s elections, when all 100 seats in the House and 40 seats in the Senate are up for grabs, could change all of that.
“I’ve looked at it that we have two years, unless people go out and vote,” Derzis said. “At least I have two years to be there. And if it’s not there after two years, we move.”
The Bristol zoning change wouldn’t affect Derzis’ clinic, unless she ever wants to expand it. She sees the uproar as an opportunity to build support.
“This is fabulous,” she said. “Money cannot buy the advertising this’ll do.”
* * *
As other states restrict abortion, Bristol as ‘ground zero’
Half an hour before the Bristol City Council was set to vote on the resolution, the line to get into the municipal building was more than 80 people long.
The fire marshal eventually closed the door, leaving clusters of abortion rights supporters and anti-abortion activists standing on the sidewalk and watching a livestream of the meeting on their phones.
Even the council’s meetings about whether to bring a casino to the city – a hotly contested issue that several churches had strongly opposed – hadn’t attracted so many people, several attendees said. Vice Mayor Neal Osborne said last week that as far as he could recall, the only topic that had come close to drawing that kind of crowd in recent years was the 2019 discussion about declaring Bristol a Second Amendment sanctuary city. (That resolution passed unanimously.)
“This is one of the most important items that has ever been on this agenda,” Kevin Wingard, the council member who worked with the Family Foundation on the zoning amendment, said from the dais. “We are talking life.”
He said he believes that the council has the full authority to stop more clinics from coming to Bristol, and that it needs to take action quickly.
“We already have one that moved across the state line,” he said, to loud applause. “It is my opinion that one is too many, and I don’t want to see a second or a third.
“You know they’re going to try to come,” he said. With surrounding states banning or restricting abortions, “We are ground zero. … It is life or death.”
The citizens who spoke mostly agreed with Wingard. Some talked about the sanctity of life and their desire to save unborn children. Some argued that pregnant women must be protected from unscrupulous abortion providers. Two women talked tearfully about their own abortions, and about how they still regretted those long-ago decisions.
Speakers worried that one clinic would bring more clinics, which would bring more protesters, which would scare away tourists, and they wondered what Hard Rock, the owner of the Bristol Casino, would think. (Asked about this concern, a spokesman for Hard Rock said last week that the company had no comment.)
The Rev. Chris Hess of St. Anne Catholic Church – one of six speakers who identified themselves as pastors – said that a journalist from Sweden who was writing about abortion in the U.S. had recently visited his church. He predicted the arrival of abortion seekers and abortion activists from other states, and he warned that Bristol could attract “radicalized extremists” from both sides of the debate.
“Our city’s becoming famous for all the wrong reasons,” he said.
* * *
Where does Bristol’s authority end, and the state’s begin?
Of the three people who spoke against the ordinance change, one raised a question that seemed to resonate with four of the five council members, who came back to it later in the meeting: Can the city of Bristol even do this?
“This provision can’t stand,” Bristol resident Rick Watts told the council. “It’s going to be tens to hundreds of thousands of dollars of lawsuits and challenges and court cases that we can’t afford for the city, for something that can’t fundamentally be passed because it’s not legal.”
At issue is the Dillon Rule, named for a 19th century Iowa judge. It’s the legal premise that local governments only have the powers that are explicitly granted to them by the state. Virginia is one of 39 states that use the Dillon Rule to define the power of local governments, according to the Brookings Institution.
In Virginia, those limits have made the news several times in recent years. The city of Roanoke couldn’t levy a tax on plastic grocery bags until the General Assembly gave localities that power in 2020. Several Northern Virginia localities want to ban gas-powered leaf blowers but can’t because the state hasn’t granted them that authority. (A bill that would have done just that was introduced during the last legislative session but died in committee.)
Nowhere in Virginia code does the state explicitly grant localities any authority over abortion clinics.
Virginia has given localities fairly broad authority in land-use matters, said Rich Schragger, a professor at the University of Virginia School of Law who has written extensively on the Dillon Rule. But the state also has interpreted the Dillon Rule quite restrictively, he said, and he doesn’t believe that the kind of ban that Bristol is considering fits the conventional view of what land-use ordinances are meant to do: to deal with congestion or pollution, for instance, or the negative effects on the surrounding community from a landfill.
“My immediate reaction is that in Virginia, you’re taking a pretty big risk to adopt one of these in light of the current state of Dillon’s Rule,” Schragger said.
The city also could expose itself to a challenge on the basis that it’s discriminating by only regulating one type of medical procedure, he said. Additionally, he said, Virginia law extensively regulates medical practices and procedures, which could be an argument against local governments using their land-use powers to do the same.
In two legal memos sent to the city council, attorney Josh Hetzler holds firm to the Family Foundation’s stance that the city has the “overwhelming authority” to enact the amendment, which “enjoys a presumption of validity,” and he dismisses as “irrelevant” the state’s existing regulation of medical fields.
“While the restrictive reputation of the Dillon Rule sometimes creates caution for local governments, the law is clear in this case,” writes Hetzler, who works for the foundation’s legal arm, the Founding Freedoms Law Center. “The Commonwealth has delegated express statutory authority to adopt restrictive zoning ordinances such as this Amendment, and the U.S. Supreme Court has opened wide the door for local governments to regulate abortion.”
In an interview, Cobb said it’s important to consider the spirit of the law: “We believe it’s very clear they have the authority to protect human life,” she said. “If you don’t have that authority, you don’t have any authority. That’s the fundamental basis of why you do what you do. Why do we want flourishing businesses? Because we need an economy to feed people to protect human life. So we believe that’s squarely within their authority, no question.”
During their Oct. 25 meeting, four of the five council members – everyone except Wingard – expressed concerns about taking any action before getting a legal opinion from city attorney Randall Eads, who had recommended that they hold off until he could finish his research.
“As a Christian, I agree with you that life is precious,” Councilwoman Becky Nave said to the assembled crowd. “As a city council member, I also believe that we need to do our due diligence … in getting that legal opinion to make sure as we move forward we are making the best decisions for this city that we can make, and not cause any lawsuits to come about.”
But in the end, after Wingard pushed the group to approve the resolution – “Let the legalities be worked out in planning,” he said, to applause from the gallery – the council voted unanimously to send it on to the planning commission, and to hear from Eads at their next meeting.
Wingard, Nave and Councilman Bill Hartley did not reply to multiple voicemail messages left for them last week. But both Osborne and Farnum emphasized last week that both the council and the planning commission would be getting a legal opinion before either group took any further action.
Eads, who’s also the city manager, didn’t want to discuss the specific legal advice he’s given to the city council. But he said in an interview that he sees significant challenges with the proposed ordinance.
“I’m extremely confident that we cannot propose and pass an ordinance as presented by the Family Foundation,” he said. “I think the biggest issue with what they’ve put forward is that it basically completely outlaws abortion within the city of Bristol, Virginia, and it could effectively put a clinic out of business if that clinic would make any sort of structural or reconstructive changes at that clinic. I don’t think that would ever pass constitutional muster.”
He also raised the question of enforcement. “The practical issue is, how do you police it?” he said. “I’m not going to direct staff to go into medical facilities to see what types of treatments they’re giving patients. I don’t think a medical facility would ever stand for that, so I think that would be challenged in court.”
Eads said he’s researched zoning ordinances across the state and hasn’t found one yet that specifically mentions abortion clinics.
City council members met with Eads in a closed session last week. He will brief the planning commission at its Monday meeting, again behind closed doors; the topic isn’t on the commission’s agenda for any action to be taken.
* * *
‘What do they think’s going to happen next?’
For now, little has changed at the clinic near the Bristol Casino. Patients come in a couple of days a week for abortions – mostly medical ones, Derzis said, as she needs to find more doctors to offer surgical options – and protesters follow. Even if the measure passes, Bristol Women’s Health would be unaffected unless Derzis wanted to expand.
Derzis said she doesn’t have a problem with the demonstrators, as long as they’re peaceful. “They have a right to do that in this country as long as they keep it in that range,” she said.
She and Adams have not shied away from telling their story. They’ve talked to journalists from Atlanta, Sweden, New Zealand; they’ve done interviews with Reuters and Voice of America and CBS News.
“Silence doesn’t do anything but continue bad stuff,” Derzis said. “It’s always worked for us to be open.”
Osborne, the vice mayor, said he’s not sure just how divisive the issue of abortion is in Bristol, despite the turnout at the Oct. 25 council meeting. From what he’s seen, it’s been a fairly small group of people – maybe 10 on each side – who have been regularly protesting.
“It’s not something that is generally on the forefront or on the top of minds of Bristol residents,” he said. “We’ve got a lot of other good things going on, a lot of other big, serious, consequential stuff going on that I think takes up a lot more oxygen in the discussion here.”
Eads, too, said his office hasn’t heard much about the clinic from residents.
“I’m sure there are people who feel strongly on both sides of the issue within the city of Bristol, but at least my office has not heard a significant number of complaints from people,” he said. “Or not only complaints, support.”
Rosenwinge disagrees with their assessment. “I think it is extraordinarily divisive,” she said. She remembers when the debate over the casino was raging a couple of years ago, and people would steal yard signs from their opponents. “That was very, very divisive. But nothing like this.”
She said she and other clinic workers and volunteers have had their personal information posted online, and she and her daughter both have been accosted in the parking lot at Food City.
She was never afraid when she was a clinic escort, she said. In fact, she’d draw the abortion protesters into yelling matches to pull their attention away from the patients.
But now that she’s working inside the clinic, her perspective has changed, she said. “Being in here, and hearing Diane Derzis say that she’s having people come out here to give her estimates on bulletproof glass …” She trailed off.
She was surprised, she said, by the council’s unanimous vote, considering the legal and financial problems that the city is already facing – it’s being sued by Bristol, Tennessee, over landfill issues and is saddled with a significant amount of debt related to a commercial development that has been less successful than expected.
But she was amused by opponents’ fears that one abortion clinic will lead to a proliferation of them.
“You don’t open abortion clinics like McDonald’s,” she said. “You don’t buy franchises. That’s not the way this works.”
Osborne said he’s not worried that the clinic will hurt the city’s growing tourism efforts.
“I don’t necessarily see whether or not there’s a women’s health clinic as a driving factor on whether or not people are going to come to Bristol, or come to the region in general,” he said. “The clinic had been on the Bristol, Tennessee, side for a very long time. That never stopped anyone from coming to the race or coming to Rhythm and Roots or anything like that.”
He said he’s pro-life but thinks the decision about an abortion has to come down to the person who needs it, and to their doctor. “I consider myself fortunate that I’ll never have to make that decision, and so I don’t tend to think that I would want to be involved in making those decisions for other people,” he said.
Even if Eads were to tell the council that the Dillon Rule hurdles could be overcome – which he didn’t think was likely – he said he probably wouldn’t support the zoning change. “I think it’s something that should be at the state level,” he said.
Rosenwinge said she’s been thinking about the ramifications of a council vote in favor of the zoning ordinance. Some people think drinking alcohol is a sin, she said – should Bristol declare itself a sanctuary city for the sober and forbid restaurants from serving beer? Or what about gambling – should Bristol become a sanctuary for ex-gambling addicts and kick out the casino?
“What do they think’s going to happen next?” she asked of abortion opponents. “It’s mind-boggling that they think that they’re the only ones that are going to think of this.”
But efforts to make abortion a local issue already have spread beyond Bristol.
In early September, after the Bristol clinic had opened but before the city council there had taken up the zoning issue, the Russell County Board of Supervisors unanimously passed a resolution declaring the locality to be a pro-life sanctuary. Tazewell County followed suit with a similar resolution three weeks later.
While those actions are largely symbolic – there are no abortion clinics in either locality, and the resolutions carry no law enforcement or regulatory authority – supervisors in Washington County, which surrounds the city of Bristol, recently voted to have the county attorney research a zoning change similar to what has been offered in Bristol. Hetzler said the board has reached out to him.
Hetzler said last week that he anticipates Eads will counsel the city against adopting the new ordinance. But he doesn’t think that should stop the council from pursuing it.
“This is a purely political decision,” he said. “It’s a decision of political will on the part of the city council. They have the power to pass an ordinance or not pass an ordinance to do this. … What we’ve sought to do is provide them legal guidance that assures them that they can, and we’ve sought to show them through our grassroots efforts that there are a lot of people in Bristol who support this. And therefore, as a political matter, they should.”