Draft regulations for Va. abortion clinics could lead some to close, operators say

August 26, 2011

— State health officials released new regulations late Friday for Virginia’s abortion clinics that establish specific physical requirements for facilities, allow inspectors to make unannounced visits and mandate that hospitals provide emergency care.

The 26-page draft was immediately criticized by abortion-rights organizations as a way to shut down many of the state’s 22 clinics that perform abortions.

“At first glance, we still anticipate that our health center in Falls Church would not be able to comply with these regulations,” said Laura Meyers, chief executive officer of the Planned Parenthood clinic in Falls Church. Last year, the center had 5,000 patients and performed 800 abortions.

Anti-abortion advocates have been pushing for two decades to impose new regulations that would treat abortion clinics as ambulatory surgery centers and require that they meet hospital-type regulations. They say such rules will make Virginia clinics safer for women because they will no longer be treated like doctor’s offices.

The regulations require the same strict physical requirements as outpatient surgical centers that would be doing complex and invasive surgery, abortion rights activists said. The new requirements are based on dozens of pages of guidelines for health-care facilities published by the Facility Guidelines Institute, a nonprofit group. They specify size of exam rooms (minimum “clear floor area of 80 feet”), public corridors that are a minimum width of 5 feet, and minimum ceiling heights of 7 feet 10 inches.

“The physical plant requirements would be just about the worst in the country,” said Elizabeth Nash, a public policy analyst with the Guttmacher Institute, a nonprofit reproductive health research center that gathers comprehensive data on abortion in the United States. “They will require abortion clinics to meet the physical plant requirements of hospitals, which is completely out of scale with the safe nature of abortion.”

The proposal also allows the state’s health commissioner to suspend or revoke a clinic’s license, requires that a facility has an infection prevention plan and mandates that anesthesia be administered by a doctor.

Groups, such as the conservative Family Foundation and Virginia Catholic Conference,

the public policy arm of the state’s Catholic dioceses, had been eagerly awaiting the regulations. But organizations on both sides said Friday they needed more time for analysis.

Victoria Cobb, executive director of the Family Foundation, said Planned Parenthood, the nation’s largest abortion provider, should have enough money to ensure clinics are safe for women.

The rules would apply to anyone in Virginia who provides five or more first-trimester abortions a month. Virginia law requires that second-trimester abortions be performed at hospitals.

The 15-member Board of Health, which has a majority appointed by Gov. Robert F. McDonnell (R), is scheduled to vote on the rules Sept. 15. They would go into effect Dec. 31. Attorney General Ken Cuccinelli II (R) and McDonnell will then review the regulations.

Regulatory changes to the Board of Health typically take up to two years to implement. But state officials have been rushing to adopt emergency rules after the General Assembly voted this spring to mandate that the rules be written no more than 280 days after the bill was signed into law.

McDonnell, who repeatedly praised the General Assembly’s decision to regulate clinics, can alter the regulations. His spokesman, Jeff Caldwell, said the governor’s office will carefully review the regulations.

The emergency rules will remain in effect while permanent regulations are crafted.

Abortion-rights groups have said they fear the regulations could force the closure of most of the state’s clinics by requiring cost-prohibitive renovations that have nothing to do with protecting women’s health.

Jessica Honke, public policy director for Planned Parenthood Advocates of Virginia, said the group was disappointed that the health department “apparently has ignored sound science and drafted regulations designed to limit access to safe, legal abortion services.” She said the draft rules were “onerous and go well beyond” existing regulations in other states.

The extensive physical plant requirements, which include covered entranceways, are intended for new construction, not existing health structures. She said the rules would threaten the continued availability of safe, legal first trimester abortions in “multiple locations” across Virginia.

Putting clinics out of business, the groups have argued, is the real goal of abortion opponents and elected officials who have pushed for the regulations.

Many health centers say most of their services are for primary and preventive care, such as cancer screenings, prenatal care and HIV/AIDS tests. About 25,000 abortions were performed in Virginia last year, including those at hospitals and doctor’s offices, according to the Health Department.

Virginia state health officials had told health center operators that the rules were going to be modeled on an updated version of rules adopted by South Carolina, which has some of the nation’s more restrictive rules, activists said.

Among the state’s 46 pages of requirements, for example, is one that says sinks must have hands-free faucets and others that govern air flow and temperature in clinics.

Activists have said those restrictions are intended to make it harder for clinics to operate.

Jordan Goldberg of the Center for Reproductive Rights said this week that it is premature to say whether abortion-rights groups are likely to challenge the Virginia regulations in court.

Elsewhere in the region, the District is restricted by Congress from using its own Medicaid money to fund abortions except in cases of life endangerment, rape and incest. Maryland officials are proposing regulations that focus broadly on safety and sanitation in abortion clinics but allow each facility to be treated differently.

The Virginia Board of Health regulated abortion clinics from 1981 to 1984, when former governor Charles S. Robb (D) ended the practice.

Lena H. Sun is a national reporter for The Washington Post, focusing on health.
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