News Law and Policy

‘You Don’t Always Get To Be at the Table’: Virginia Democrat Champions ‘Conscience Law’

Erin Matson

A recently signed law to license genetic counselors in Virginia includes a sweeping "conscience" provision that is the direct result of a partnership between an anti-choice group and a prominent Democrat who just two years ago was held up nationally as a hero and champion for reproductive rights.

A recently signed law to license genetic counselors in the Commonwealth of Virginia includes a sweeping “conscience” provision that is the direct result of a partnership between an anti-choice group and a prominent Democrat who just two years ago was held up nationally as a hero and champion for reproductive rights, according to new information obtained by Rewire.

HB 612, along with a companion bill, SB 330, provide that genetic counselors may not be forced to participate in counseling that conflicts with their deeply held moral or religious beliefs. HB 612 has been passed by both chambers and was signed by the governor, so it is now law; SB 330, the symbolic senate companion to the house bill, has been passed with an identical conscience clause but not signed by the governor. If the governor were to veto SB 330, HB 612 would still stand.

In an action alert from the American Civil Liberties Union of Virginia urging the governor to veto SB 330, the group outlines the legislation’s impact, likening it to a so-called conscience bill that was recently vetoed in Arizona:

A state licensed professional will be able to deny counseling to any patient simply because the patient is lesbian or gay or of a different religious faith or unmarried and pregnant or because the person may want to take an action with which the counselor doesn’t personally agree based on the genetic information provided by the counselor … It will shield a genetic counselor from damages even if the counselor took purposeful action based on his or her beliefs that results in actual physical harm or death to the patient.

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Genetic counseling licensure laws are being promoted by groups including the National Society of Genetic Counselors, which states on its website a goal of ensuring uniformity between state laws so as to provide “greater flexibility between states in how genetic counselors practice, and, most importantly, provide the highest quality services.” The group does not include a conscience clause among model legislative provisions listed online.

The conscience language in Virginia’s genetic counseling licensure law was engineered by Sen. Janet Howell (D-Reston), who made headlines in 2012 for introducing an amendment to require men to undergo rectal examinations in what is now Virginia’s forced ultrasound law. Howell served as the chief sponsor of SB 330 and commissioned the Family Foundation, an anti-choice group that calls itself “the largest and most influential Virginia-based organization of its kind,” to write the language, Tarina Keene, executive director of NARAL Pro-Choice Virginia, told Rewire.

Keene said she tried to lobby Howell’s office to change the clause after the passage of the house bill. “Sen. Howell’s aide said the Family Foundation wrote the conscience clause,” she said. “She said you are too late to work on this. She looked straight at me and said, ‘You don’t always get to be at the table.'”

The house bill subsequently passed the senate, and Democratic Gov. Terry McAuliffe signed it. However, pro-choice advocates continued to lobby the governor’s office, and ultimately the governor recommended an amendment to the senate bill that would have watered down the clause to require that counselors provide patients a timely notice of refusals to provide services and a referral to another genetic counselor. The recommendation failed to pass as an amendment in the senate, leading the Family Foundation to boast that Sen. Howell had said she felt “perfectly comfortable” with the original clause.

NARAL Pro-Choice Virginia and NARAL Pro-Choice America are working on a letter to Gov. McAuliffe urging him to veto SB 330 for the purpose of setting a symbolic precedent against conscience legislation, Keene told Rewire. A call to the governor’s office asking why he signed HB 612 if he wished to change the conscience clause has not been returned.

News Health Systems

Virginia Governor Stops ‘Out of Touch’ Effort to Defund Planned Parenthood

Nicole Knight Shine

Gov. Terry McAuliffe said the GOP funding restrictions were likely unconstitutional and noted that federal courts have struck down similar laws in North Carolina and Texas.

Virginia Gov. Terry McAuliffe (D) on Tuesday vetoed legislation to defund Planned Parenthood, thwarting the latest GOP-led attempt to gut reproductive health-care services.

HB 1090 would have prevented the Virginia Department of Health from issuing grants or contracts with organizations that provide abortion care, except for licensed hospitals. The bill, sponsored by Delegate Ben Cline (R-Rockbridge County) carved out exceptions for providers who perform procedures in cases of rape, incest, fetal anomaly, or in cases of life endangerment.

The legislation had cleared the house in a 64-35 vote and the state senate 21 to 19. Republicans dominate the state house and have a two-seat edge in the state senate.

“This bill, aimed at Planned Parenthood, would harm tens of thousands of Virginians who rely on the health care services and programs provided by Planned Parenthood health centers by denying them access to affordable care,” McAuliffe said in a statement issued Tuesday following the veto.

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“They are out of touch with women, with health care providers, and with Virginia families,” McAuliffe said of legislators who supported the Republican bill, according to the Virginian-Pilot.

McAuliffe said the measure would have outlawed contracts between the health department and the nonprofit Virginia League for Planned Parenthood, which conducts at its facilities about 500 annual tests for sexually transmitted infections (STIs).

The state health department has two contracts with Planned Parenthood totaling $26,200, as the Virginian-Pilot reported. The contracts are for STI education and testing.

fiscal impact statement prepared by the state Virginia Department of Planning and Budget indicated the measure had the potential to “increase the rates of sexually transmitted disease, increase health care costs resulting from undiagnosed disease, and lead to increased cases of ophthalmic gonorrhea/chlamydia in the newborns of infected women.”

McAuliffe said the GOP funding restrictions were likely unconstitutional and noted that federal courts have struck down similar laws in North Carolina and Texas.

The measure was the latest salvo in a Republican-led campaign to strip Planned Parenthood of funding, after a series of deceptive, covertly recorded videos by the Center for Medical Progress (CMP) purported to show the health-care provider illegally trafficking in fetal tissue. Two key figures from the anti-choice front group, which has worked closely with Republican lawmakers, now face charges related to the discredited smear videos.

Twenty states have either cleared Planned Parenthood of wrongdoing or declined to investigate the health-care organization.

Republican lawmakers, however, remain undeterred. An ongoing congressional investigation is now subpoenaing the names of doctors, patients, and clinic staff in what Democratic leaders have called a “dangerous witch hunt.” Congressional Republicans have tried repeatedly to defund Planned Parenthood.

In 2015, 11 state legislatures introduced, passed, or enacted measures to gut funding of health-care providers like Planned Parenthood, the Guttmacher Institute found.

The Guttmacher analysis shows that defunding Planned Parenthood could seriously curtail health-care access. Planned Parenthood sites are the sole safety-net family planning center in one-fifth of counties in which they are located. Planned Parenthood health centers serve at least half of those obtaining birth control from safety-net health centers in two-thirds of the 491 counties where they are located.

News Abortion

Virginia Clinics Navigate Changing TRAP Law: ‘I Feel Like I’m Digging a Hole Just to Fill It Back In’

Nina Liss-Schultz

The burden of TRAP regulations in Virginia was lightened in early May, when Attorney General Mark Herring clarified that existing clinics can be grandfathered into the law's architectural component. Still, challenges persist.

Getting an affordable abortion in Virginia isn’t an easy process. But neither is providing one. The state Board of Health in 2013 approved sweeping architectural and administrative regulations for outpatient abortion clinics that subject the facilities to the same architectural standards as hospitals.

The scramble to comply with the targeted regulation of abortion providers (TRAP) law, put in place by a Republican governor in 2011, along with other anti-choice regulations, has cost clinics thousands of dollars, forced them to cut services, and drained already limited resources, employees at state clinics say. Three of the state’s abortion clinics have closed or stopped providing abortion services as a result of the 2013 anti-choice legislative onslaught.

“It’s sort of like the prisoner of war,” said Rosemary Codding, policy director of the Falls Church Healthcare Center, located in northeast Virginia, less than a half hour’s drive from Washington, D.C. “I feel like I’m digging a hole just to fill it back in.”

The burden of GOP-backed TRAP regulations in Virginia was lightened in early May, when Attorney General Mark Herring, a Democrat, clarified that existing clinics can be grandfathered into the regulation’s architectural component, a decision that contradicted his predecessor, the virulently anti-choice Republican Ken Cuccinelli.

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New Virginia clinics still have to comply with the regulation while it’s under review, a process that can take up to two years.

Codding, who has worked at the Falls Church Healthcare Center since 2002, said a lot has changed since its opening that year.

Since 1975, when the Virginia legislature passed its first post-Roe abortion restriction allowing medical professionals to refuse to provide abortion services for any reason, the state has passed several anti-choice measures—among them a mandatory waiting period, a ban on coverage in health insurances, and a forced parental notification requirement.

The waiting period law, passed in 2003, requires that a woman meet with her physician at least 24 hours before getting an abortion. That mandatory delay places a burden not only on the pregnant person seeking an abortion—she’ll have to take off work an extra day, find child care for an extra day, and pay for an extra bus ticket or hotel room—but also on providers, who have had to rearrange the schedule of their services to comply with the law.

In 2003, the Falls Church Healthcare Center, which offers services for all pregnancy outcomes, including prenatal care, adoption, and abortion, had to cut two sessions of regular gynecological services to accommodate the wait time requirement.

But it wasn’t until 2011 that Virginia gained notoriety as a state with one of the strictest abortion regulations in the country. That year, lawmakers passed SB 924, which began as a measure to address infection and disaster preparedness at hospitals. When the state Republican-majority house added an amendment directing the Board of Health to create regulations on abortion clinics, the bill went from an innocuous measure to tackle hospital safety to an anti-choice bullet.

The Board of Health approved final TRAP restrictions on clinics in the state two years after SB 924’s introduction.

Under the regulations, clinics performing at least five first-trimester abortions a month (second-trimester abortions have to be performed in a hospital under Virginia law) were re-classified as a category of hospital, subjecting them to sweeping architectural requirements.

No other type of outpatient surgical facility was reclassified or subject to the new rules.

The architectural requirements set out by the regulation include the presence of five-foot-wide hallways, treatment rooms of a certain size and type, covered front entrances, public telephones and drinking fountains in waiting rooms, a certain number of parking spaces, and specific new ventilation systems.

The Falls Church center, like the other clinics in Virginia, received a waiver exempting them from complying with the architectural requirements for the year. Still, the clinic, which rents space in an office building, requested that an architect see what changes they’d need to make in order to comply with the anti-choice measure. The estimate alone cost the center $11,000.

“For a small community center like ours, $11,000 is almost everything we need to pay for capital improvements for a whole year,” Codding told Rewire. “So now that’s totally wiped out.”

The architect told the center that the cost of renovating could range from $500,000 to $1.5 million, or the equivalent of 40 years’ worth of net resources for the clinic.

“So when people say, ‘You mean you would just close?’ Well, of course,” Codding said.

Clinic staff feel like they’re still in limbo being pulled back-and-forth at the behest of political interests. Herring’s decision is guidance for the health commissioner, who was appointed by Democratic Gov. Terry McAuliffe. But if the commissioner changes, or if McAuliffe and Herring aren’t re-elected, that reprieve could vanish, and the TRAP regulations could have new legislative life.

“Until we see the [Board of Health] revisions,” Codding said, “we don’t know how this is going to play out long-term.”

“Personally it’s been very wearing on me because you’re constantly trying to do the appropriate thing for patients and staff, but the rules are constantly changing.”

The Falls Church Healthcare Center has hired three additional staff to keep up with the changes in state policy. And while they don’t have to undergo million-dollar renovations, they do have to comply with other portions of the regulations, including a long list of administrative rules.

Codding, under the law, had to create bylaws for the center, even though they weren’t required under LLC rules. She had to create personnel files for each staff member with state-mandated information, including medical and vaccination history, and a copy of the staff person’s job description and curriculum vitae, to be updated each year.

“That may not seem like much, but it takes time and talent away from what we do,” she said. “It takes resources away from our patient care.”

Less than a month after the Board of Health approved its 2013 TRAP restrictions, the Hillcrest Clinic, which offered a range of reproductive health care services to residents of the Virginia Beach area and which had operated in the state for more than 40 years years, decided to close, citing the $500,000 it would take to meet the TRAP requirements. The clinic had survived arson, a bomb, and bullets.

Abortion clinics in Virginia have continued to provide quality reproductive health care. “I think I’m digging a hole and filling it back in,” Codding said again. “And yet we do provide quality, meaningful care to our patients, in spite of all this. I think that is amazing.”