The restrictive and medically dubious abortion regulations passed a year ago in Virginia are being challenged by state officials, and could be effectively overturned.
Following a several-months long review, the state Department of Health commissioner on Wednesday published a recommendation to amend the 2013 law imposing strict architectural standards on abortion clinics, which critics have said could close all clinics in the state.
The health department, following the recommendation from the commissioner, will create a formal proposal to amend the law, which it will then bring to the Virginia Board of Health for a vote.
In 2013, after two years of volleying between the state legislature, Republican Gov. Bob McDonnell, and the state Department of Health, McDonnell signed into law regulations requiring clinics that perform five or more first-trimester abortions per month (second trimester abortions must be performed in a hospital) conform to the same architectural requirements as hospitals.
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The targeted regulation of abortion providers (TRAP) law, first written in the general assembly, had to be passed by the health department’s board before going to the governor for a signature. At first, the Virginia Board of Health had approved the regulations with an amendment to grandfather in already-existing clinics.
After pressure from politicians, including a letter written by then Attorney General Ken Cuccinelli threatening to deny the board state-funded legal counsel for the lawsuits that would ensue, the board dropped the amendment.
The regulations passed by the board require not only that new clinics abide by hospital architectural rules, but also that all already-existing clinics do.
The hospital requirements being applied to abortion clinics—though not other outpatient facilities—as a result of the law mandate 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, and specific new ventilation systems.
“These laws were designed with one purpose in mind: to shut down women’s health centers and prevent patients from accessing safe and legal abortion along with the comprehensive preventive health-care services that women’s health-care centers provide,” Katherine Greenier, the director of the ACLU’s Reproductive Freedom Project, told Rewire.
Three of Virginia’s 21 clinics have closed or stopped providing abortion as a result of the 2013 law.
Karen Remley, then commissioner of the board of health, left the position a month after receiving the letter, citing the abortion regulations in her resignation.
Newly-minted Democratic Gov. Terry McAuliffe in May ordered the state Department of Health to take a second look at the TRAP laws. “The regulations enacted last year placed unprecedented construction requirements on these facilities,” McAuliffe said in the executive order requesting the review, “and I am concerned that these new restrictions may negatively impact women’s access to necessary health services.”
The report published today by the health commissioner is the result of that review process, which included a public comment period that elicited more than 14,000 comments. Some 10,500 of those comments requested that the commissioner recommend the repeal of the regulations entirely, according to the report.
TRAP laws have gained in popularity among Republican-dominated legislatures in recent years as a way to effectively eliminate access to safe abortion care without explicitly outlawing it. As of July this year, 26 states had TRAP laws in place.
Virginia is one of 13 states that regulates the width of hallways and the size of procedure rooms.
The arguments used to justify TRAP laws—that they protect women from unsafe abortions—belie the medical facts: abortions, almost none of which are performed in hospitals, are very safe. Less than 0.3 percent of women who get abortions experience complications resulting in hospitalization, and childbirth is 14 times more deadly than abortion, according to the Guttmacher Institute.
The commissioner’s report is not final; it only recommends that the regulations be amended. The Virginia Board of Health will vote on the Notice of Intended Regulatory Action (NOIRA) to amend the regulations in December. If the board approves the NOIRA, the state can move forward with a more specific proposal to amend the law.
Though McAuliffe appointed five pro-choice members to the board, it remains unclear whether or not the board will approve the NOIRA. If the board votes it down, the TRAP law will remain intact by default.
“If the regulations are not amended,” said Greenier, “the impact of the regulations is potentially disastrous for women and families in Virginia.”