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Board approves stricter building rules for abortion clinics

Vote by state board ends two-year battle in Va. over architectural requirements

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Licensure of Abortion Facilities

Activists showed their signs to members of the Virginia Board of Health during meeting in western Henrico County on abortion clinic regulations on August 12, 2013. The board voted 11-2 to approve stricter rules covering building standards for the facilities.

The Virginia Board of Health on Friday gave final approval to regulations that will require the commonwealth’s existing abortion clinics to comply with construction standards for new hospitals.

The 11-2 vote followed an hour of public testimony and the defeat of a renewed call to exempt the existing clinics from the building requirements, which critics say will impose medically unnecessary retrofitting so costly that it will force a number of the clinics to close.

Virginia’s 20 licensed clinics have less than two years to comply with the regulations. Among other things, the rules mandate the size of hallways, closets, procedure rooms and covered entryways.

After the vote, anti-abortion advocates in the packed Department of Health room in Henrico County applauded. Abortion-rights advocates rose to their feet and shouted “Shame!” and in a gesture aimed at the attorney general, displayed red hands and yelled “Ken Cuccinelli has blood on his hands” as they were escorted out.

Anti-abortion groups hailed the board’s vote.

“These reasonable regulations will begin to rein in reckless abortionists in Virginia,” said Olivia Gans Turner, president of the Virginia Society for Human Life.

“Tragically, important as they are, these regulations cannot guarantee the long-term well-being of women that obtain an abortion, nor do they protect the unborn children whose lives are taken during every abortion.”

But the National Abortion Federation said the board “succumbed to political pressure and once again placed political considerations ahead of women’s health and well-being.

“These regulations are not about ensuring that abortion care is ‘safe,’ ” said NAF President Vicki Saporta. “They are about ensuring that abortion care is unavailable in Virginia.”

The two board members who voted against the regulations, James H. Edmonson Jr. of McLean and H. Anna Jeng of Norfolk, sought to postpone the vote until June. They wanted more time to investigate alternatives to the construction mandates that would bring the existing clinics into compliance without potentially crippling them financially.

Later Friday, Cuccinelli certified the regulation. Nine months earlier, the attorney general had refused to certify the rules when the board had voted to grandfather existing clinics, exempting them from the hospital construction rules.

The regulations now head to final review by Gov. Bob McDonnell, before being published in the Virginia Register of Regulations for a 30-day final adoption period before taking effect.

Nineteen of the 20 existing facilities have applied for recertification. Health Department official Erik Bodin said the Hillcrest Clinic in Norfolk indicated it would not seek license renewal.

Friday’s vote marked the end of a roughly two-year battle following the General Assembly’s passage in 2011 of legislation requiring the Board of Health to regulate the clinics like hospitals.

During that time, the regulatory debate has reflected the political divide on the legality of abortion. Supporters of the regulations included religious and social conservative groups opposed to abortion, who argued that the new rules protect women’s safety.

Opponents of the regulations, who support current law that allows women to terminate a pregnancy, charged that the building rules are medically unnecessary and are meant to restrict access to legal abortion.

Both sides were well-represented at Friday’s hearing, held in a state office building in western Henrico under heavy security and police presence.

Critics of the proposed regulations appealed to the board in statements employing anger, humor, legal analysis and medical opinion.

Taking issue with aspects of the architectural requirements that would be imposed on the clinics, speaker Whitney Whiting sarcastically expressed concern about her safety during a fictitious visit to a clinic that did not have an awning.

Kendall Perkinson wondered why the board was protecting patient safety by singling out abortion clinics for regulation but wasn’t paying similar attention to the safety concerns of wealthy Virginians who undergo liposuction — one of a number of invasive medical services performed in an outpatient setting that are not subject to hospital regulation.

But supporters of the new rules pointed to recent health inspection reports showing repeat violations of sanitary guidelines, expired medicines and administrative infractions as evidence the clinics need additional oversight.

“The industry simply can’t be believed — it can’t be trusted,” said Victoria Cobb of the Family Foundation of Virginia. Cobb said the clinics want to be grandfathered so “they don’t have to clean up their act.”

“The abortion industry is unable to self-regulate,” said Virginia Podboy of the Virginia Catholic Conference. “We keep hearing these regulations are expensive. We say Virginia women are worth it.”

Other speakers took issue with Cuccinelli’s role in the formulation of regulations — specifically a memo sent by the Attorney General’s Office that said the board overstepped its authority in June when it voted to grandfather existing clinics — and the suggestion that board members who don’t take his advice could risk losing representation by the office in a related legal action.

The board reversed its decision in September and took a final vote on the regulations Friday.

“You can’t regulate some businesses out of existence because you don’t agree with them and call it fair and reasonable,” obstetrician Holly Puritz told the board.

Aides to Cuccinelli, an anti-abortion Republican who is running for governor, have emphasized that the attorney general’s legal positions on issues are based on his interpretation of the law and not on his personal views.

“The attorney general’s primary duty is to certify whether the regulations adopted by the Board of Health comply with state and federal law, and more specifically SB924, which was passed by the General Assembly in 2011,” said spokesman Brian Gottstein.

“This afternoon, the attorney general certified that the regulations complied with the law.”

Earlier at the hearing, abortion-rights advocate Molly Vick warned that adopting regulations that retroactively require new-building standards for clinics opens the door to requiring all existing hospitals and nursing facilities to be subject to new-construction standards.

A petition to change those regulations already has been made and will come under consideration by the board in future meetings.

“You can’t have selected application of law,” Vick said.

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