RICHMOND — The state health commissioner on Wednesday recommended that Virginia overhaul its strict hospital-style regulations of abortion providers, which threaten to shutter many of the commonwealth’s remaining clinics.
The move puts the polarizing issue of abortion back on the front burner in a state where lawmakers have long been divided over whether to erect barriers or increase access to the procedure.
Health Commissioner Marissa Levine’s decision is the first step in a process that could take years. It was triggered by Gov. Terry McAuliffe (D) last spring when he urged the Health Department to rethink rules enacted under former governor Robert F. McDonnell (R). The regulations require the commonwealth’s 18 abortion clinics to widen hallways, add parking spaces and make other costly building renovations.
Abortion rights groups say these rules represent a blatant attempt to close clinics and block access to abortion in Virginia. They applauded Levine’s decision.
“While we welcome oversight and regulations that protect patient safety, there is absolutely no medical basis for the current restrictions,” said Tarina Keene, executive director of NARAL Pro-Choice Virginia. The “medically unnecessary regulations were written by politicians with one goal and one goal only: to close high-quality women’s health centers and restrict access to a range of reproductive health services for Virginia’s women, including safe, legal abortion.”
In a letter to McAuliffe on Wednesday, Levine said she took into consideration the 14,279 comments that activists submitted, the majority urging her to repeal the regulations outright. But, she said, the state board doesn’t have that authority.
Levine, whom McAuliffe appointed in February, instead recommended amending the construction and design rules; better aligning rules for drug storage and dispensing with state code; and improving standards for medical testing, lab services, emergencies and anesthesia. She also said rules concerning parental consent required before an abortion should be clarified.
Groups opposed to abortion say the current rules are needed to ensure safety for women and access for emergency personnel. They remained optimistic that the overhaul might lead to strengthened, rather than loosened, restrictions on clinics.
“We look forward to the Board of Health strengthening the standards in the areas the commissioner has pointed out have proven to be seriously deficient in nearly every abortion center in Virginia, including the storage and dispensing of drugs, being better prepared for emergencies, improper use of anesthesia and application of state laws like parental consent,” said Victoria Cobb, president of the Family Foundation of Virginia.
In May, McAuliffe, making good on a campaign promise, called for an expedited review of the rules and replaced five of the 15 members of the Health Board. Otherwise, the usual review process wouldn’t have begun until as late as 2017.
Now it’s up to the Health Board to vote on Levine’s recommendation at its Dec. 4 meeting. If the board goes along with Levine’s decision, Health Department staff will begin to rewrite the regulations, which could take many months and incorporate the input of medical professionals.
When a draft is ready, the Health Department will share it with the board and open another round of public comment.
Regardless of how the process turns out, more political debate over abortion could be coming. The balance of power in the Virginia Senate fell to Republicans this summer, putting the Education and Health Committee in position to attempt to strengthen limits on abortion should the majority choose to do so.
The issue has a contentious history in Virginia. In early 2011, the General Assembly voted for, and McDonnell approved, a law that categorized facilities that perform five or more abortions a month as hospitals.
As a result, the Health Department produced temporary rules imposing strict building standards on all clinics; the rules went into effect Jan. 1, 2012.
In producing a permanent set of rules, the Health Board voted to grandfather in existing clinics — but in September 2012, it reversed itself after then-Attorney General Ken Cuccinelli II (R) told board members that he believed they overstepped their authority and that he would not defend them from potential litigation. The permanent rules took effect in June 2013.
“Every year the Virginia General Assembly uses women’s health as a political football and anti-women’s health legislators try to advance bills that will roll back women’s rights. We urge legislators this General Assembly session to stand with and not against women’s health,” said Katherine Greenier, director of the Reproductive Freedom Project at the ACLU of Virginia.
After the initial legislation passed, one clinic decided to stop offering abortion services. Two others closed their doors last year.
Of the remaining 18 clinics, 13 have sought temporary waivers from the current rules. Eleven of those have been granted waivers, and two requests are still under administrative review. Five clinics have said they can comply with the architectural standards as written.