Virginia Board of Health Succumbs to Threats From Cuccinelli, Passes Medically-Unnecessary Restrictions

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Virginia Board of Health Succumbs to Threats From Cuccinelli, Passes Medically-Unnecessary Restrictions

Jodi Jacobson

Today, in a striking decision, the Virginia Board of Health allowed lies, ideology, and politics to triumph over medical science and the rights of women when it imposed medically-unnecessary restrictions on reproductive health providers.

Today, in a striking decision, the Virginia Board of Health (VBoH) allowed lies, ideology, and politics to triumph over medical science and the rights of women when it reversed its own earlier decision and voted 13 to 2 to impose medically-unnecessary restrictions on reproductive health providers. The restrictions require clinics providing abortions to comply with new hospital construction standards that are not related to or necessary for early safe abortion care and were not created in response to any demonstrated “need.” Today’s decision represents a dramatic departure from the board’s earlier decision to “grandfather” existing clinics, by allowing them to continue providing care in their current facilities.

Under Governor Bob McDonnell and Attorney General Ken Cuccinelli, Virginia has been a hotbed of extreme anti-choice, anti-science, anti-women policies and limitations. McDonnell, for example, strongly supported passage of a forced trans-vaginal ultrasound law, requiring women seeking an abortion to undergo a financially burdensome trans-vaginal ultrasound even when it was not medically indicated. After a national outcry, the law was “modified” to remove the forced trans-vaginal ultrasound requirement, but that became a meaningless technical fix, since the law nonetheless still requires a forced ultrasound be performed before a woman can obtain an abortion, and depending on the stage of pregnancy, will still mean coercing women to undergo either an abdominal or trans-vaginal ultrasound.

The Virginia legislature also passed and McDonnell signed SB 924, a Targeted Regulation of Abortion Providers or TRAP law. TRAP laws are used by anti-choice legislators to dramatically reduce access to safe abortion care at the state level by burdening providers with unnecessary regulations. In the case of Virginia, the law required clinics performing first trimester abortions—one of the safest of all medical procedures performed in the United States—to be regulated as hospitals. This means that existing clinics in the state have to spend hundreds of thousands of dollars meeting irrelevant criteria, such as the size of janitorial closets, as well as providing for unnecessary levels of emergency care. There are no medical or public health indications for such regulations.

The original bill gave the state’s Board of Health 280 days to create and to enact the new regulations. But in 2011, McDonnell took the highly unusual step of invoking “emergency” status for the process, thereby shortening the period of review. 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—was completely thrown out.

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Nonetheless, the board’s own advisory panel recommendations and evidence revealed that the new construction standards did nothing to advance women’s health and would impede access to safe abortion care for many Virginians. Based on the advisory panel’s initial recommendations, the VBoH earlier this year rejected the onerous regulations and, maintaining some semblance of objectivity and consideration of evidence, exempted existing clinics from having to comply.

Today, only three months later and under extreme pressure from Cuccinelli and MCDonnell, the board reversed its earlier decision and voted to require existing reproductive health providers to comply with new hospital construction standards. In fact, it can fairly be said that Cuccinelli undertook a campaign of coercion against the board of health over the past year.

First, Cuccinelli refused to certify the regulations adopted by the board in June, essentially directing the board to reverse its vote. When it appeared that the board might in fact base the final regulations on medical evidence and not on politics, Cuccinelli then levied a threat against board members, underscoring that they would be held personally liable for the costs of litigation should a lawsuit be filed, and announcing that the state would not defend the board’s action.  

The board’s vote means that several clinics across the state will be threatened with closure in the near future unless they can undertake massive and medically-unjustified renovations just to stay open.

“Not a single other type of health care provider in Virginia has been subjected to this level of political bullying and government interference,” said Michelle Movahed, a staff attorney at the Center for Reproductive Rights.

“These unwarranted requirements specifically target reproductive health care providers—many of which have been serving Virginia women and families for roughly 40 years—with regulations that have no medical purpose. It forces these health care providers to choose between incurring backbreaking costs or shutting their doors. Either way, it’s the women of Virginia who will suffer the consequences.”

Democratic process was thrown out along with the medical evidence. NARAL Pro-Choice Virginia noted that more than 300 pro-choice advocates were shut out of the vote, despite repeated requests to move the meeting to a location that could accommodate public discussion.

In a statement, the group said:

“Among those denied the chance to speak were several legal and constitutional experts, set to testify that in rejecting the Board’s June vote, Attorney General Cuccinelli had exceeded his authority and undermined the Board’s decision-making power. Several physicians and clinic advisors were also blocked from testifying on behalf of the nearly 200 Virginia doctors who urged the Board to reject political pressure and protect women’s access to essential medical care.”

The regulations passed today will now move through a multi-stage process, including approval from Governor McDonnell and another round of public comments. The ACLU of Virginia noted in its statement on the VBoH vote that:

[T]he next step in the regulatory process (as currently applied by the McDonnell administration although of questionable compliance with the statutory requirements in the Administrative Process Act) is for the proposed rules to go back through the Attorney General’s office and the Governor’s office prior to being published in the Virginia Register for 60 days of public comment. After the public comment period closes, the Board of Health will have another opportunity to look at the rules in light of the comments received and make changes prior to adopting them in final form.”

“We are stunned by today’s vote, and extremely disappointed in the thirteen Board of Health members who decided to put political ideology before evidence-based scientific fact,” said Tarina Keene, Executive Director of NARAL Pro-Choice Virginia. 

“It is unprecedented to force existing health centers to comply with building regulations intended for new construction, and the Board acted well within its authority in voting to amend these regulations in June,” Keene said. “We will continue  to stand for women’s health, despite this administration’s attempt to silence us. Virginians are sick of playing politics with women’s lives.”

It is clear that the battle to preserve women’s rights to safe, legal abortion in Virginia will continue on many fronts for months, and most likely years, to come.