By Katherine A. Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of Virginia
Legislative maneuverings are nothing new, but the Virginia General Assembly, with some last minute shenanigans during this past session, may have just maneuvered itself into reproductive rights morass with very real legal implications.
On February 24, 2011, the House of Delegates passed SB 924, a bill that requires the Board of Health to issue regulations related to infection prevention and disaster preparedness for hospitals, nursing homes and certified nursing facilities.  As approved by the Senate, SB 924 had nothing to do with abortions, but House members added a last minute amendment that classifies “facilities in which 5 or more first trimester abortions per month are performed” as a category of hospitals.
Lt. Governor Bill Bolling broke a 20-20 tie in the Senate when he voted in favor of the bill as amended in the House, sending it to Governor Bob McDonnell, who will almost certainly sign it.
The effect of SB 924?  That will depend on the regulations produced by the Board of Health, but clinics in the state that currently provide safe and legal first-trimester abortions will have to meet at least some of the facilities requirements now imposed on the various types of hospitals classified under state law, possibly the requirements now mandated for outpatient surgical centers.   Even doctor’s offices that provide medication abortions in the very beginning stages of pregnancy could be affected.

The Board of Health’s Process for Drafting Regulations
The Board will follow a fast paced timeline to enact emergency regulations within 280 days of the Governor signing the bill.  Between March and May they will research regulations of abortion providers passed in other states.  On September 1, the Board will receive draft regulations, leaving only two weeks before a September 15 meeting during which the Board will review and vote on the draft regulations, and will provide an opportunity for public comment.  Sometime during fall 2011 the draft regulations will go to the Governor, Attorney General, and Secretary of Health for executive review.  The regulations will then be implemented on January 1, 2012.
The executive review process could result in changes to the proposed regulations.  Thus, of particular concern about this timeline is the fact that there is no period for public comment after the executive review.  Moreover, the Board will not have the opportunity to vote on any changes made during the executive review before the regulations are implemented on January 1, 2012.
These emergency regulations will be in effect for one year, or longer if the Governor chooses to extend them by six months as allowed by law.  After the emergency regulations expire, the Board will follow the normal process for creating health regulations, which can take anywhere from 18 months to over two years.  During the normal course of creating health regulations, there is a greater opportunity for public comment and provisions in place that can force the process to begin again if substantial objections are raised.
TRAP Laws and Their Effects
Measures like SB 924’s amendment, called Targeted Regulation of Abortion Provider, or TRAP, laws, pose unnecessary and burdensome restrictions on abortion providers.  They have nothing to do with the safe delivery of services for women and everything to do with legislators’ views on reproductive rights.  Indeed, any health care expert will tell you that the architectural, procedural, staffing, and equipment requirements of outpatient surgical centers are unrelated to providing, and unnecessary for ensuring, safe first-trimester abortion services.
That’s why, until this amendment passed, the General Assembly had over many years, including this year, repeatedly voted down TRAP legislation when introduced as a stand-alone bill.
Seventeen of the twenty-one clinics in Virginia could shut down due to an inability to meet the largely cosmetic but very costly regulations that are likely to be imposed on them.  Even those clinics that can afford to remodel to meet the new standards will be forced to pass along the expenses to their clients, thereby making abortions too costly for many women.
There simply is no legitimate legislative purpose for singling out abortions in the way SB 924 does.   Abortion is no different from many other outpatient procedures that do not trigger these kinds of strict regulations  In fact, first-trimester abortions remain one of the safest and most common of all in-office surgical procedures, with complication rates occurring in less than one-half of one percent of all procedures, according to the Guttmacher Institute.
Additionally, abortion care entails one-thousandth the risk of death involved in an appendectomy, a common in-office surgical procedure.  The complication rate from abortion is vastly lower than that of breast augmentation, another procedure commonly performed in physicians’ offices, according to the U.S. Food and Drug Administration.
Physician's offices that provide abortions are already regulated by state and federal agencies. They also meet the same licensing standards as facilities where other similar kinds of surgical medical procedures are provided, such as plastic surgeries, colonoscopies, and sterilization.
Under the U.S. Supreme Court’s decisions in Roe v. Wade and Planned Parenthood v. Casey, such regulations can only be enforced if they serve the state's interest in promoting the health of abortion patients and if they have neither the purpose nor effect of unduly burdening a woman's ability to exercise her decision to have an abortion.
With TRAP legislation, there is an additional legal principle at play: equal protection under the law, which mandates treating similarly situated groups similarly, except in circumstances where the government can demonstrate that dissimilar treatment serves an important state function.  Given everything we know about abortion procedures as they are currently regulated and practiced, Virginia cannot possibly justify this dissimilar treatment for abortion clinics.
What Will Happen in Virginia?

Whether or not a legal challenge is in the offing will depend on precisely how burdensome the Board of Health’s regulations end up being.  While no state board is immune from politics, the Board of Health and its staff are professionals who know the law and, more importantly, understand that their purpose is to oversee the delivery of health services in Virginia and not to use their power to impose their individual ideologies on the citizens of Virginia.
We don’t know what the Board of Health is going to do now, but one thing is certain:  Legislators have made a law intended to harm rather than promote women’s health in Virginia.  Legal or not, that’s bad lawmaking.
Take Action
We and our pro-choice allies are working hard to anticipate the regulations the Board of Health may develop and to urge members of the Board to adopt the least restrictive regulations.  We’ll need you to add your voice to those advocating for reproductive freedom in Virginia.  Please sign up to become a grassroots lobbyist so that we can spring into action in a timely manner.  We’ll let you know when and how to take action as the Board moves through the process.