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July 17, 2012

ACLU of Virginia urges the Board of Health to continue to oppose unnecessary and burdensome regulations that place politics above women's health and safety.

Richmond, VA -- The Office of the Attorney General yesterday refused to certify new regulations of women's health centers, which had been approved last month by the state Board of Health. The AG’s office reasons that the Board exceeded its authority by adopting an amendment that allows existing women’s health care centers to be “grandfathered in,” rather than subjected to building requirements meant for the construction of new facilities.

“The ACLU of Virginia is greatly disappointed that activist Attorney General Ken Cuccinelli continues to impose his personal political views in the regulatory process,” said Katherine Greenier, Director of the ACLU of Virginia’s Women’s Rights Project.  “His activism continues to threaten women’s health and safety by seeking to impose unnecessary and burdensome regulations of women’s health centers that provide abortion care jeopardizing the ability of those facilities to remain open and provide a wide array of other health services to the community.”

“The Attorney General's refusal to certify the new regulations of women's health centers is intended to force the Board to rewrite the rules to suit the AG’s policy objectives,” added Greenier.  “While the Attorney General has the responsibility to review proposed regulations to determine if the Board has the authority to adopt them, the law does not give his Office veto power over the Board’s policy decisions about what to include in the final rules. This is a forced interpretation of the law aimed at advancing the Attorney General's anti-choice views.”

“We understand that the issue of abortion has become a politically-charged issue in the Commonwealth, but regulation of health care facilities should not be a political act. Rather, it should promote high-quality patient care and the protection of public health,” said ACLU of Virginia Executive Director Claire Guthrie Gastañaga in her June letter to State Health Commissioner Dr. Karen Remley and members of the Board of Health.  “The Board’s amendment of Section 370 furthered those aims. Undoing the Board’s work, particularly on the basis of a deeply flawed legal analysis such as the one urged by the Attorney General’s office, would be a grave disservice to the women who seek care from the reproductive health care facilities that have been offering comprehensive reproductive health care for almost forty years.”

Under Virginia Code, the Board of Health is directed to promulgate regulations that conform to standards established and recognized by medical and health professionals and that are consistent with the 2010 Guidelines for Design and Construction of Health Care Facilities.

As originally drafted, the regulations governing women’s health centers diverged from those of other health facilities by requiring existing health centers to meet the construction and safety guidelines intended only for new construction rather than “grandfather in” those facilities.  The original rules stood in stark contrast to expert medical opinion and were inconsistent with the 2010 Guidelines.

“Thus, the original draft of this regulation exceeded the Board’s statutory authority,” argues the ACLU in its letter.  “Recognizing the inconsistency between the draft regulation and the enabling statute, the Board of Health amended the draft regulation to apply the Guidelines as the experts intended. This amendment also brings the regulation into closer alignment with the regulations Virginia has applied to every other kind of health care facility.”

In her letter, Gastañaga also wrote that, contrary to the AG’s contention, the statute that directed the Board to create new regulations for women's health centers, Senate Bill 924, did not direct the Board to promulgate any specific regulations and did not direct the Board to impose requirements meant only for new construction to existing health centers. Rather, in passing SB 924, the General Assembly rightly committed regulation to the Board’s discretion and expertise.

The regulations now go before the Governor for review. The ACLU of Virginia strongly encourages the Governor to put any comments he has on the public record as envisioned by the executive review provisions of the Administrative Process Act, and urges the Board of Health to continue to oppose unnecessary and burdensome regulations that place politics above women's health and safety.

A copy of the ACLU’s letter can be found at https://acluva.org/wp-content/uploads/2012/06/20120621LtrRemleyAGAuthority.pdf.

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