Va. board approves strict abortion clinic rules

April 12, 2013

The Virginia Board of Health voted Friday to require clinics that perform abortions to meet strict, hospital-style building codes that operators say could put many of them out of business.

The 11 to 2 vote represented the board’s final say on the matter, which has taken unexpected twists and turns since the General Assembly voted in 2011 to regulate abortion clinics like outpatient surgical centers. The regulations went straight to Attorney General Ken Cuccinelli II (R), who quickly certified them. They now go to two state agencies and Gov. Robert F. McDonnell (R), who is expected to sign off on them.

Always a politically charged issue in the commonwealth, abortion is likely to take on an even greater presence in this year’s governor’s race because of the new clinic rules. The race features two candidates who seem to be polar opposites on the issue: Cuccinelli, an opponent of abortion, and Democrat Terry McAuliffe, a supporter of abortion rights.

Within five minutes of the board’s vote, partisans on both sides blasted e-mails variously linking the vote to one candidate or the other.

“Board of Health puts politics before medicine, approves Cuccinelli’s outrageous women’s health restrictions,” read a release from ProgressVA, a liberal group.

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The Susan B. Anthony List, which supports Cuccinelli and works to elect politicians opposed to abortion nationwide, countered with its own statement, headlined: “McAuliffe Puts Big Abortion Ahead of Safety of Virginia Women.”

The board’s action comes at a time when measures restricting abortion seem to be gaining traction in statehouses across the country, with four states adopting stringent restrictions on the procedure in the past six weeks.

The issue was uncharacteristically muted during this year’s Virginia General Assembly session, in sharp contrast to the 2012 session, which was consumed by a proposal to require women to undergo a vaginal ultrasound before an abortion. The Republican leadership, who felt the ultrasound controversy helped Democrats push claims of a GOP “war on women” in last fall’s presidential and U.S. Senate contests, saw to it this year that abortion bills of any sort quietly died in committee.

The board’s decision will provide fresh fodder for Democrats, who spent two straight weeks recently trying to drum up interest in Cuccinelli’s past comparison of anti­abortion activists to abolitionists.

The vote stems from legislation that cleared the legislature two years ago and has been slowly making its way through implementation.

The General Assembly voted in 2011 to impose stricter building codes on clinics, calling for costly physical renovations, such as wider hallways and doorways, expanded parking and entrance awnings. Supporters said the ­changes ensure the safety of women undergoing abortions at the clinics. Opponents said the measure was a veiled attempt to shutter them.

It fell to the state Board of Health to implement the new rules. In a surprise move in June, the board voted to exempt existing clinics from the new standard. But the board reversed itself in September, adopting the regulations without grandfathering in the established clinics. The board confirmed that decision with Friday’s final vote.

The board’s September about-face came at Cuccinelli’s urging. In a letter, he suggested that if board members did not follow his advice against grandfathering, his office would not defend them in any resulting litigation and that they could be personally liable for legal bills.

Opponents of the measure said the state routinely grandfathers facilities of all sorts when new regulations are adopted. Cuccinelli’s office argued that because the state had just started requiring that abortion clinics be licensed — all 20 received their initial licenses last year — they should be treated like new facilities.

Molly Vick, an abortion rights activist, told the board Friday that the state grandfathered existing hospitals when it first began regulating them in 1947 — a fact she turned up after digging through boxes of old records in the state library archives.

“You cannot have selective application of the law,” she said.

Other opponents mocked the idea that the architectural standards would actually translate into better health care. Whitney Whiting of Richmond launched into what initially sounded like an emotional account but quickly proved to be satire.

“As an abortion survivor, I thought I was doing the right thing,” she said in a quavering voice. “I pulled into the parking lot. Only 12 parking spaces. I started to have second thoughts. I parked the car, and I got out. Something seemed odd. And then I realized there was no awning over this facility. . . . I wasn’t sure I wanted to go inside for fear of what I might find.”

But supporters said things such as wider hallways were needed to ensure that medical personnel could get stretchers and equipment into the clinic in an emergency.

“Despite the hysterical claims of the abortion industry that they will be forced to close their facilities, the truth is they must simply choose between the health and safety of their patients or the health of their profits,” said Victoria Cobb, president of the Family Foundation of Virginia.

More than one speaker invoked the capital murder trial of a Philadelphia abortion provider, Kermit Gosnell, whose clinic has been described as a “house of horrors.”

“We need to be assured that a Kermit Gosnell-type practitioner is not operating in Virginia,” said Janet Robey, state director of Concerned Women for America.

The board’s vote on Friday angered abortion rights activists, who shouted “Shame! Shame!” and “Blood on your hands!” About 150 activists on both sides of the abortion issue had crowded into the meeting room and an overflow area.

Some of the abortion rights activists held paper cut­outs of Cuccinelli’s face to their own.

The two board members who voted against the regulations were H. Anna Jeng of Norfolk, who was appointed by Gov. Timothy M. Kaine (D), and James Edmondson of McLean, who was appointed by Gov. Mark R. Warner (D) and reappointed by Kaine.

Edmondson said afterward that Cuccinelli had bullied the board with a “patently false” threat not to represent them in any lawsuits. “He would have utterly no choice [but] to defend us as officers of the state,” Edmondson said. “Regardless, my colleagues on the board wanted no part of having to worry about . . . paying for their own defense.”

Brian Gottstein, a spokesman for the attorney general, said before the vote that Cuccinelli’s role is to evaluate the law without regard to his personal views on abortion.

“The attorney general’s primary duty is to certify whether the regulations adopted by the Board of Health comply with state and federal law,” Gottstein said in a statement. “That is exactly what he intends to do.”

Laura Vozzella covers Virginia politics for The Washington Post.
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