After some administrative mistakes by Virginia’s Department of Health, the State Board of Health postponed an expected vote on proposed amendments to regulations for the licensure of abortion facilities.
The vote originally was slated for Thursday, but the board decided instead to hold a specially scheduled meeting before Dec. 1 to vote on the regulations.
The vote is meant to decide whether Virginia will amend its current regulations, which were put in place after a 2011 law passed by the General Assembly that required the Board of Health to reclassify facilities that perform abortions as hospitals.
Opponents argue the classification is unfair to the clinics that perform abortions, while proponents claim it keeps women safe. The amendments could strike that classification.
Earlier this year, the U.S. Supreme Court ruled in a Texas case — Whole Woman’s Health v. Hellerstedt — that requiring abortion facilities to meet hospital-like building standards is an undue burden.
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The Department of Health recommended the vote’s delay after a hearing Wednesday of the assembly’s Joint Commission of Administrative Rules, where mistakes in the regulatory process of putting those potential amendments to a vote were illuminated.
“As (Marissa J. Levine, state health commissioner) acknowledged to the Joint Commission of Administrative Rules yesterday in their meeting, some mistakes were made at the staff level within the department,” said Joe Hilbert, director of governmental and regulatory affairs with the Department of Health, during a break in Thursday’s meeting.
The mistakes included a failure to include all public comments in what is supposed to be a complete summary of comments made publicly available and distributed to board members five days before the scheduled meeting at which a vote is expected.
The department also filed a Final Regulation Agency Background document that referred to Thursday’s meeting in the past tense, as though the board members already had voted to approve the amendments to abortion clinic regulations. The Department of Health since has updated its document, correcting its language about the vote and including summaries of comments it received both for and against the proposed amendments.
Chris Freund, vice president of The Family Foundation — a Richmond-based organization that opposes abortion — alleged during Thursday’s meeting that comments against the amendments submitted to the Board of Health during a public comment period that ended July 1 were not included in the Final Regulation Agency Background document.
“That document can be corrected, but the damage to the integrity of this process cannot be fixed,” Freund told the board.
In another letter written to the commission, several past and present Board of Health members — including current members Megan C. Getter and Henry N. Kuhlman — wrote that the Board of Health violated the Administrative Process Act by adding amendments to its Notice of Intended Regulatory Action that had not been approved in a past board meeting.
“We question whether the defects in the administrative process could result in the invalidation of the proposed regulations,” the letter states.
But a memorandum for Thursday’s meeting states that, “Based on advice received from the Office of Attorney General, additional amendments have been proposed to the regulations to comply with the U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt.”
Freund was the only speaker during Thursday’s meeting to raise concerns about the regulatory process. About 30 other people spoke in favor of the amendments, citing a desire to ensure that women continue to have access to safe abortions.
Many referred to the Supreme Court decision this year. Amy Hagstrom Miller, founder of Texas-based Whole Woman’s Health and lead plaintiff in the case, spoke during Thursday’s meeting in favor of amending Virginia’s regulations.
Dels. Jennifer B. Boysko, D-Fairfax, and Marcia S. Price, D-Newport News, also spoke Thursday in favor of amending the regulations.
The General Assembly “should trust women and their doctors,” Boysko said, adding that the regulations “single out abortion clinics.”
But Freund claimed that the mistakes the Department of Health made “had a chilling effect on bringing people to this body who want to have a voice in the process, when they realize that ... a decision has already been made.”
According to the board’s updated Final Regulation Agency Background document, it received several comments asking the board to keep the current guidelines in place, or to further restrict abortion access in the state.
House Majority Leader Del. M. Kirkland Cox, R-Colonial Heights, released a statement after the decision to postpone the vote, applauding the joint commission for informing the board “on the proper application of Virginia law.”
“These regulatory changes are misguided,” Cox said in his statement. “In the rare and undoubtedly scary moments when a mother feels that abortion is her only choice, she should be assured that the abortion will be completed in a safe environment capable of meeting all of her medical needs.”
