Challenge to stricter regulations for Virginia abortion clinics moves forward

An Arlington County judge on Wednesday ruled that a lawsuit challenging new regulations of Virginia clinics that perform abortions can move forward.

The Falls Church Medical Center is seeking to overturn an April decision by the Virginia Board of Health that applies strict, hospital-style building codes to the clinics. Among other things, the rules mandate the width of hallways and doorways as well as the number of parking spaces. Some providers have said costly renovations needed to comply would put them out of business.

Attorneys for the medical center argued in court that abortion clinics have been treated differently than other outpatient medical facilities. Solicitor General Earle Duncan Getchell Jr. defended the regulations, saying that the Board of Health simply followed the General Assembly’s directive and the law.

Circuit Court Judge Benjamin Kendrick denied a request by the state to dismiss the case. He predicted that the contentious lawsuit will eventually go to the state appeals court.

The case stems from legislation, signed by Gov. Robert F. McDonnell (R) in 2011, that requires clinics that perform first-trimester abortions to be treated as a class of hospital. But it was up to the Board of Health to make the rules guiding that classification. An initial vote on the regulations would have grandfathered in existing clinics so they wouldn’t have to complete expensive renovations. Attorney General Ken Cuccinelli II (R) sent a memo to the board’s members, warning that they could be denied state legal counsel if they allowed existing clinics to be exempted.

The board went on to reverse its decision.

“The board was bullied,” Lawrence Roberts, an attorney for the clinic, said after the hearing.

“This office’s job was to advise the board how to craft the regulations in accordance with the law,” said Brian Gottstein, a spokesman for the attorney general, who said accusations that the office bullied the board are baseless. “It’s clear that the regulations were crafted in accordance with the law.”

Looming over the case is the election that will occur in just a few weeks, in which Cuccinelli is vying against Terry McAuliffe (D) to become governor of Virginia.

“I do imagine the election will have an impact,” Roberts said, pointing to Cuccinelli’s and McAuliffe’s differing views on abortion. A new attorney general could decide not to defend the Board of Health in court, he added.

McAuliffe has said he opposes the new clinic regulations and supports current Virginia law, under which abortions in the first two trimesters are legal. Cuccinelli has said he is against abortion unless the mother’s life is at risk.

On Wednesday, outside the courthouse after the hearing, supporters of the clinic said they were pleased with the ruling. Rosemary Codding, clinic director of the Falls Church Health Care Center, called the judge’s decision a “spiritually uplifting” victory during a very difficult time for her practice.

“As a woman of very strong faith, I know God is with me,” she said. “My faith in government has been uplifted.”

Kendrick did agree with the solicitor general that the Virginia Department of Health and commissioner Cynthia Romero, the state health commissioner, enjoy sovereign immunity and thus cannot be parties to the suit.

Before the hearing, about 60 people rallied outside, many holding signs that read “Keep abortion legal” and “Stop the war on women.”

Jennifer Lassiter, a bakery owner in Arlington who is a board member of NARAL Pro-Choice Virginia, told the crowd she is eight months pregnant and relies on the Falls Church Health Care Center for prenatal care.

“Falls Church Health Care Center is not just an abortion facility,” she said. “They provide annual checkups, they help with prenatal care — which I cannot even imagine going without with the stress of being a first-time parent.”

Unlike many clinics, the Falls Church Health Care Center already has the wider hallways and larger exam rooms required, although Codding is still attempting to comply with some of the new regulations. Her clinic is busier than ever, she said Wednesday, because a nearby abortion provider has closed in the face of the new regulations.

Rachel Weiner covers local politics for The Washington Post.
Antonio covers government, politics and other regional issues in Fairfax County. He worked in Los Angeles, New York and Chicago before joining the Post in September of 2013.
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