Va. Governor McDonnell Expected to Issue “Emergency” TRAP Regulations Today

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Va. Governor McDonnell Expected to Issue “Emergency” TRAP Regulations Today

Jodi Jacobson

Using what is at best a highly unusual "emergency" process, Virginia Governor Bob McDonnell is expected on Friday, August 26th to issue guidelines for what is known as Targeted Regulation of Abortion Providers (TRAP). 

Using a highly unusual “emergency” process, Virginia Governor Bob McDonnell is expected on Friday, August 26th to issue guidelines under what is known as a Targeted Regulation of Abortion Providers (TRAP) law that will treat clinics providing first trimester abortions as a form of hospital. There are no medical or public health indications for such regulations.

In March, McDonnell, a virulently anti-choice Republican, signed SB 924, a law that requires clinics performing first trimester abortions to be regulated as hospitals. The bill gave the state’s Board of Health 280 days to create and to enact the new regulations. Because McDonnell has invoked “emergency” status for the process, it is expected that temporary regulations–which will first be issued tomorrow and voted on by the Board of Health in September–will be put in place for a period of up to 18 months while permanent rules are developed through a more established process. 

The catch is this: the McDonnell Administration is bypassing virtually all democratic processes in place for the creation of such regulations. Under the emergency designation, the normal process for public review and comment on regulations, which usually involves several opportunities for expert testimony and public comment and an economic impact assessment among other considerations, has been completely thrown out. Instead, draft regulations will be released tomorrow, and then voted on at a meeting of the Board of Health on September 15th. Instead of any public hearings or comment periods, the Board meeting will be the only time for the public to speak out.  After the board votes on these temporary regulations, they will go to the governor for final approval. Moreover, the McDonnell administration has claimed it has the authority to rewrite without any further notice or input any temporary regulations presented to it for signature.

I’d say that is as close to government by fiat as it gets.

Sex. Abortion. Parenthood. Power.

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Analysts suggest that the temporary regulations will have an insidious effect of creating uncertainty among clinics as to what to do. Normally, such regulations would include a period of time–two years–during which clinics can make accommodations for any changes that might be necessary to comply with law, such as changes in physical structure, which can be expensive.  But by issuing temporary regulations, the McDonnell Administration puts existing clinics on an uncertain path: Do they take on the expense of adapting to regulations that might be thrown out or replaced in 18 to 24 months when more “permanent” regulations are published? Or do they take the risk of being found in violation of medically-unnecessary regulations that are costly and impede their ability to provide services to women in need?

Virginia has a lot of company in creating medically unnecessary TRAP laws and regulations seeking to diminish access to abortion care. “Nearly 30 states have some sort of TRAP law,” notes Elizabeth Nash, Senior Public Policy Associate at the Guttmacher Institute. “Regulations in some states essentially require clinics providing abortions to become miniature hospitals by mandating they meet ambulatory surgical standards.”

The Center for Reproductive Rights (CRR) notes that TRAP laws  generally fall into one of three categories: health facility licensing schemes, ambulatory surgical center requirements, and hospitalization requirements.

Health facility licensing schemes vary widely in their breadth and scope, but generally require that abortion facilities (but no other comparable offices or clinics) become licensed by the state and meet a range of regulations governing such matters as physical construction, staffing, and procedures. 

Ambulatory surgical center (“ASC”) requirements mandate that abortion providers – including, in at least one state, those that provide only first-trimester medical or surgical abortions – be licensed as ASCs, which are sophisticated facilities designed for the performance of a range of out-patient surgeries. “These requirements go far beyond the recommendations of the national health organizations in the field of abortion care, and converting a physician’s office or outpatient clinic into an ASC can be too expensive for many providers.” notes a CRR report.

Hospitalization requirements mandate that abortions beyond a certain gestational age (generally at some point in the second trimester) be performed in a hospital. Although many states have some type of hospitalization requirement on the books, the vast majority of those laws are unenforceable because they been declared unconstitutional by a court ruling or state official, or have been superseded by another law.

In the case of Virginia, the TRAP laws specifically target first trimester abortion, one of the safest medical procedures performed in the United States. As I wrote in July:

More than 90 percent of abortions occur in the first trimester of pregnancy.  Legal, early surgical termination of pregnancy performed by a trained provider is among the safest possible surgical procedures of any kind, anywhere.  Early medical abortion (using medications to end a pregnancy) has a similar safety profile. Less than 3 percent of women who undergo early termination of pregnancy report any complications whatsoever; the vast majority of those “complications” are issues so minor they can be handled in a medical office or clinic.  Fewer than 0.5 percent of women have serious complications from early termination that require hospitalization or surgery.

Does the “emergency push” by the McDonnell administration for abortion regulations come after a rash of problems found at clinics providing abortion care? No. There is no precipitating event other than the desire by Governor McDonnell and his Attorney General Bob Cuccinelli to turn back the clock on women’s health and rights.

Advocates are unable to say at this time what will be included in the temporary regulations expected out tomorrow, but suspect they may in some form reflect those adopted in states such as South Carolina or in Kansas.

In many states with anti-choice legislatures and governors, such as Kansas, TRAP laws can literally become a farce.  In July, Kansas Governor Sam Brownback and the Kansas Department of Health put in place regulations targeting abortion clinics that proscribed the size of the janitor’s closets, the temperature at which rooms should be kept, and the size of staff and patient lockers. They further required that clinics be prepared to deal with a “live birth,” a completely superfluous and misleading regulation given that there is no such thing as a “live birth” in the first trimester of any pregnancy. In South Carolina, regulations mandate similarly irrelevant aspects of a clinic’s physical plant, down to the types of faucets to be installed in sinks. The Kansas TRAP regulations were temporarily enjoined by a federal court in a suit brought by CRR and the American Civil Liberties Union.

These actions are separate from and go far beyond the normal regulation of health clinics–licensing of physical plant and providers, standards for cleanliness, operational standards for equipment used–under which abortion clinics and other clinics performing procedures with similarly low levels of risk must already comply.

While TRAP laws are ostensibly put in place to “protect women” or “protect patient safety,” these terms are simply the Orwellian equivalent of a bait and switch. Guttmacher Institute’s Nash notes that there is no credible research on the impact of these types of TRAP regulations on patient health or outcomes, and therefore no evidence that these improve either health or outcomes in any way. It is clear the vast majority of these laws are enacted simply to make create medically-unnecessary obstacles that anti-choice lawmakers hope will be prove too great for providers to overcome, and in turn make it more difficult for women to obtain early abortions by making clinics providing them more scarce.  It is a nakedly obvious strategy to reduce access through harassment using the excuse of protecting health. In fact, the risks to women’s health are far higher if they are forced by lack of access to seek abortions later in their pregnancies.

Contrast Virginia with the states of Delaware and Maryland, which in fact have or are considering laws regulating abortion clinics truly focused on patient safety, according to Nash. In these states, for example, laws actually do focus on protecting patient health and providing a safe and clean environment by writing regulations to ensure that the physical plant of a clinic is safe, functional, and sanitary without focusing on things like the size of patient lockers or the outcomes of operations not ever performed. In this way, Nash notes, states can focus on safety by allowing for each clinic to be configured differently as long as they meet basic standards.

Though legal organizations working to protect the rights and health of women can’t predict what the regulations will contain and therefore are unable to comment on any legal strategy, women’s groups from across Virginia have sprung into action to protest efforts by the McDonnell administration to strip women of their rights. The Virginia Coalition to Protect Women’s Health formed in 2011 as a response to the attack on women’s health and safety prompted by Senate Bill 924. The goal of the coalition is to “protect and ensure access for all women in all regions of Virginia to safe first-trimester abortion and comprehensive reproductive health care services,” and to oppose “excessive, burdensome or unneeded regulations that undermine patient access to medical care for political or ideological purposes.”  The Coalition is expecting to collect at least 10,000 signatures to deliver to the Board of Health before the September hearing, and is requesting support from women in the state in this effort.