“The Governor will review the final regulations when the board submits them for his review,” McDonnell spokesman Jeff Caldwell said in an e-mail.
The board’s decision came as a shock to people on both sides of the abortion debate.
“It is totally unexpected,” said Rosemary Codding, director of patient services at the Falls Church Healthcare Center, which sent seven staffers to the board’s day-long meeting in Richmond. “I’m so encouraged to think that they’ve done the right thing.”
Also caught off guard was Sen. Richard H. Black (R-Loudoun), one of the General Assembly’s most fervent antiabortion lawmakers.
“If the purpose of this is to provide protection for women, which I believe it is, then the idea that you would [grandfather in] unsafe conditions seems senseless,” he said.
After one the most contentious debates of the 2011 General Assembly session, legislators voted to regulate abortion clinics like outpatient surgical centers. State officials quickly wrote emergency regulations dictating such things as the size of exam rooms and the storage of patient records.
On Friday, the Board of Health had been expected to pass permanent regulations that were substantially the same as the emergency rules. It did so, but with an amendment partially grandfathering in existing clinics.
If the board’s decision stands, clinics would still have to submit to some aspects of the regulations, including those requiring more extensive record keeping. But they would not have to revamp their facilities, such as by widening hallways and doorways or installing drinking fountains and telephones in waiting rooms. Many clinics had said those costly renovations could have forced them to close.
Codding said her clinic had already spent $13,000 on renovations and would have to spend as much as $1.2 million if the regulations, which had a two-year phase-in period, were fully implemented.
The board voted 7 to 4 in favor of grandfathering the clinics, which in Virginia are allowed to perform only first-trimester abortions. It did so against the advice of the office of Attorney General Ken Cuccinelli II (R).
At the meeting, Cuccinelli’s representatives advised the board that the amendment would be improper because the law the General Assembly passed in 2011 required that clinics be treated like new facilities, according to participants at the meeting.
Toward the end of the meeting, the attorney general’s office repeated its assertion that the amendment was improper. The board voted to reconsider the amendment, but it was approved again, that time by a 6 to 5 vote.
Cuccinelli’s office declined to comment on the decision.
“The role of our office is to provide our client with advice that we feel will ensure the regulations created are in compliance with the law the General Assembly passed, as well as with any other applicable laws,” said Brian J. Gottstein, Cuccinelli’s spokesman. “Whether or not the Board of Health takes our advice is its decision.”