Virginia Board of Health Approves Burdensome and Unnecessary Abortion Regulations

ACLU condemns regulations based on politics, not women’s health

Richmond, VA – The Virginia Board of Health today voted 13-2 to approve burdensome and unnecessary regulations governing women’s health centers that perform abortions.  These new proposed regulations, if unchanged after a 60 day public comment period, will make abortions more expensive and more difficult to obtain particularly if some clinics are forced to close.

The proposed regulations, which will go out for public comment soon, are required to implement  SB 924, a 2011 law passed by the General Assembly mandating that the Board of Health create and implement new regulations treating clinics that perform five or more first-trimester abortions a year like a kind of hospital.

The proposed permanent regulations approved today are virtually identical to the widely-criticized temporary regulations, and do not include the “grandfather clause” approved by the Board in June that would have protected existing facilities from having to comply with onerous building and construction requirements normally  applied prospectively only to new facilities or facilities undergoing planned major renovations.  Advancing the proposed regulations without the “grandfather clause” shows a willful disregard for the opinion of medical experts and the outpouring of public concern about the impact of these extreme and burdensome regulations on women’s health care.

The proposed rules were approved after board members were told in a memo from an Assistant Attorney General that the Attorney General’s office would not represent them if they adopted the rules with the “grandfather clause” intact and were later sued.  Board members were told that approval of the “grandfather clause” would mean that they’d have to pay for private counsel.  ACLU of Virginia Legal Director Rebecca Glenberg characterized the threats as “overreaching” and said that the Attorney General’s office well knows that the rules that govern who has standing to bring a lawsuit make it very much more likely such a suit will come if the Board doesn’t include the “grandfather clause” in the rules.

Katherine Greenier, Director of the Patricia M. Arnold Women’s Rights Project of the ACLU of Virginia, said following the vote that:

“Courts in Virginia have been clear that the authority allowing an agency to promulgate regulations also obliges the agency to only adopt rules that are consistent with that statute’s purpose.  These proposed permanent regulations do not meet that standard.  Most dramatically, proposed regulation 370, the architectural requirements, is a direct contradiction of what specialists and professionals have recommended about appropriate building regulations for health care facilities.  The experts who developed and wrote the 2010 Guidelines that are being applied to women’s health centers explicitly said that they should only apply to new construction or new renovations.  Proposed regulation 370 ignores those explicit statements.”

The next step in the regulatory process (as currently applied by the McDonnell administration although of questionable compliance with the statutory requirements in the Administrative Process Act) is for the proposed rules to go back through the Attorney General’s office and the Governor’s office prior to being published in the Virginia Register for 60 days of public comment.  After the public comment period closes, the Board of Health will have another opportunity to look at the rules in light of the comments received and make changes prior to adopting them in final form. The ACLU is committed to continuing to seek inclusion of a “grandfather clause” and other improvements in the final rule to be adopted by the Board.