Mischief drives change in Virginia abortion rules

Tuesday, March 1, 2011; 8:28 PM

PRINCIPLED OPPONENTS of abortion have options to reduce the number of unwanted pregnancies, including broadening access to contraception, promoting adoption and pushing abstinence-focused education. But Republicans in the Virginia General Assembly - with the help of two anti-abortion Democratic state senators - have taken a different tack. Through the use of legislative gimmickry - an amendment slipped on to a bill unrelated to abortion - they have pushed through a divisive measure that is unlikely to reduce the number of abortions performed in the commonwealth but which may eventually force some of the state's 21 abortion clinics to close - if it survives court challenges.

The bill, which Gov. Robert F. McDonnell (R) says he will sign, reclassifies health centers that perform abortions as hospitals, thereby making them subject to state regulations. It's possible that those regulations could be drafted by state officials and approved by the state Board of Health by the end of this year. Beyond that set of facts, and that relatively quick time frame, very little is certain.

From a legal perspective, it's hard to see why abortion should be regulated more stringently than other outpatient procedures. First-trimester abortions - the only kind permitted at clinics in Virginia - are extremely safe when performed by trained providers, according to the Guttmacher Institute, which studies sexual and reproductive health issues. If the purpose of additional regulation is to safeguard the mother's health, as pro-life lawmakers insist it is, why should first-trimester abortions be treated differently from outpatient procedures such as colonoscopies, appendectomies, sterilizations or plastic surgery?

The Board of Health, whose members serve four-year terms, is dominated by appointees of former governor Timothy M. Kaine (D). Mr. Kaine, a practicing Catholic, opposed abortion, but he was also a foe of incendiary bills like the legislation just passed in Richmond, which he rightly considered an act of grandstanding likely to result in litigation.

Board members, not all of whom are thrilled with the idea of putting out of business any of Virginia's abortion clinics, will be presented with draft regulations by state health officials, who tend to be professional and non-ideological; but the board members are also advised by lawyers designated by the state's attorney general, Ken Cuccinelli II, a hard-line conservative and opponent of abortion.

The question is how much wiggle room the board will have. Its task will be to decide which regulations should cover abortion clinics - whether they should be considered a type of outpatient surgical center, for example, and meet certain standards for corridor width, parking spaces and so forth. That would probably result in the closure of most of the clinics. Conceivably, though, the board could create a new regulatory category - a fourth, since there are already three covering medical facilities - that would allow many or most abortion clinics to continue operating.

There has been talk about devising new regulations according to an emergency timetable of 280 days, much faster than the usual standard of 15 to 18 months usually followed by the board. Why the rush? Given the stakes, and the widespread public interest, there's no imaginable reason that the board shouldn't proceed at a pace that allows for extensive public comment and careful consideration of what would be a new regulatory regime.

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