Virginia Clinics Navigate Changing TRAP Law: ‘I Feel Like I’m Digging a Hole Just to Fill It Back In’

The burden of TRAP regulations in Virginia was lightened in early May, when Attorney General Mark Herring clarified that existing clinics can be grandfathered into the law's architectural component. Still, challenges persist.

The burden of TRAP regulations in Virginia was lightened in early May, when Attorney General Mark Herring clarified that existing clinics can be grandfathered into the law's architectural component. Still, challenges persist. Shutterstock

Getting an affordable abortion in Virginia isn’t an easy process. But neither is providing one. The state Board of Health in 2013 approved sweeping architectural and administrative regulations for outpatient abortion clinics that subject the facilities to the same architectural standards as hospitals.

The scramble to comply with the targeted regulation of abortion providers (TRAP) law, put in place by a Republican governor in 2011, along with other anti-choice regulations, has cost clinics thousands of dollars, forced them to cut services, and drained already limited resources, employees at state clinics say. Three of the state’s abortion clinics have closed or stopped providing abortion services as a result of the 2013 anti-choice legislative onslaught.

“It’s sort of like the prisoner of war,” said Rosemary Codding, policy director of the Falls Church Healthcare Center, located in northeast Virginia, less than a half hour’s drive from Washington, D.C. “I feel like I’m digging a hole just to fill it back in.”

The burden of GOP-backed TRAP regulations in Virginia was lightened in early May, when Attorney General Mark Herring, a Democrat, clarified that existing clinics can be grandfathered into the regulation’s architectural component, a decision that contradicted his predecessor, the virulently anti-choice Republican Ken Cuccinelli.

New Virginia clinics still have to comply with the regulation while it’s under review, a process that can take up to two years.

Codding, who has worked at the Falls Church Healthcare Center since 2002, said a lot has changed since its opening that year.

Since 1975, when the Virginia legislature passed its first post-Roe abortion restriction allowing medical professionals to refuse to provide abortion services for any reason, the state has passed several anti-choice measures—among them a mandatory waiting period, a ban on coverage in health insurances, and a forced parental notification requirement.

The waiting period law, passed in 2003, requires that a woman meet with her physician at least 24 hours before getting an abortion. That mandatory delay places a burden not only on the pregnant person seeking an abortion—she’ll have to take off work an extra day, find child care for an extra day, and pay for an extra bus ticket or hotel room—but also on providers, who have had to rearrange the schedule of their services to comply with the law.

In 2003, the Falls Church Healthcare Center, which offers services for all pregnancy outcomes, including prenatal care, adoption, and abortion, had to cut two sessions of regular gynecological services to accommodate the wait time requirement.

But it wasn’t until 2011 that Virginia gained notoriety as a state with one of the strictest abortion regulations in the country. That year, lawmakers passed SB 924, which began as a measure to address infection and disaster preparedness at hospitals. When the state Republican-majority house added an amendment directing the Board of Health to create regulations on abortion clinics, the bill went from an innocuous measure to tackle hospital safety to an anti-choice bullet.

The Board of Health approved final TRAP restrictions on clinics in the state two years after SB 924’s introduction.

Under the regulations, clinics performing at least five first-trimester abortions a month (second-trimester abortions have to be performed in a hospital under Virginia law) were re-classified as a category of hospital, subjecting them to sweeping architectural requirements.

No other type of outpatient surgical facility was reclassified or subject to the new rules.

The architectural requirements set out by the regulation include the presence of five-foot-wide hallways, treatment rooms of a certain size and type, covered front entrances, public telephones and drinking fountains in waiting rooms, a certain number of parking spaces, and specific new ventilation systems.

The Falls Church center, like the other clinics in Virginia, received a waiver exempting them from complying with the architectural requirements for the year. Still, the clinic, which rents space in an office building, requested that an architect see what changes they’d need to make in order to comply with the anti-choice measure. The estimate alone cost the center $11,000.

“For a small community center like ours, $11,000 is almost everything we need to pay for capital improvements for a whole year,” Codding told Rewire. “So now that’s totally wiped out.”

The architect told the center that the cost of renovating could range from $500,000 to $1.5 million, or the equivalent of 40 years’ worth of net resources for the clinic.

“So when people say, ‘You mean you would just close?’ Well, of course,” Codding said.

Clinic staff feel like they’re still in limbo being pulled back-and-forth at the behest of political interests. Herring’s decision is guidance for the health commissioner, who was appointed by Democratic Gov. Terry McAuliffe. But if the commissioner changes, or if McAuliffe and Herring aren’t re-elected, that reprieve could vanish, and the TRAP regulations could have new legislative life.

“Until we see the [Board of Health] revisions,” Codding said, “we don’t know how this is going to play out long-term.”

“Personally it’s been very wearing on me because you’re constantly trying to do the appropriate thing for patients and staff, but the rules are constantly changing.”

The Falls Church Healthcare Center has hired three additional staff to keep up with the changes in state policy. And while they don’t have to undergo million-dollar renovations, they do have to comply with other portions of the regulations, including a long list of administrative rules.

Codding, under the law, had to create bylaws for the center, even though they weren’t required under LLC rules. She had to create personnel files for each staff member with state-mandated information, including medical and vaccination history, and a copy of the staff person’s job description and curriculum vitae, to be updated each year.

“That may not seem like much, but it takes time and talent away from what we do,” she said. “It takes resources away from our patient care.”

Less than a month after the Board of Health approved its 2013 TRAP restrictions, the Hillcrest Clinic, which offered a range of reproductive health care services to residents of the Virginia Beach area and which had operated in the state for more than 40 years years, decided to close, citing the $500,000 it would take to meet the TRAP requirements. The clinic had survived arson, a bomb, and bullets.

Abortion clinics in Virginia have continued to provide quality reproductive health care. “I think I’m digging a hole and filling it back in,” Codding said again. “And yet we do provide quality, meaningful care to our patients, in spite of all this. I think that is amazing.”