The most important thing for abortion rights coming out of Richmond, Virginia, this fall isn’t likely to be a piece of legislation, but rather a decision from the state Board of Health: Should punitive abortion clinic regulations shoved onto the books by Ken Cuccinelli during his term as attorney general be repealed and rewritten, amended, or upheld?
The stringent regulations adopted in May 2013 classify abortion clinics as a “category of hospital,” and an executive directive signed by Gov. Terry McAuliffe (D) requires a periodic review be completed by October 1, 2014. The board must decide whether to keep the rules, change the rules, or start over.
Let’s start with the wrong answer. Upholding Virginia’s targeted regulation of abortion providers (TRAP) law would be a nightmare for public health in the commonwealth, because the clinic regulations exist solely for the purpose of shutting abortion clinics down. Making abortion more difficult to access does not wave a magic wand that converts women with unwanted pregnancies into beaming mothers-to-be.
Instead it forces women to carry pregnancies they do not want for longer periods of time, in some cases making abortion more expensive and more time-intensive. It also makes it more likely that women will be forced to seek unsafe abortion methods. That’s ironic. Proponents of TRAP laws like to concern-troll for women’s health and safety, because that plays better with the public than stating their real goal: shutting clinics down so as to physically eliminate access to abortion—a procedure they claim is immoral and unnecessary. Since the adoption of the regulations in Virginia, five clinics offering abortion have closed, and 18 remain vulnerable to closure should the state Board of Health neglect its duty to act to “[promote] and [protect] the health of all Virginians.”
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Yes, Virginia, there will always be people who need abortions within your borders. It is your duty as a commonwealth to ensure that those abortions can be legally, safely, and swiftly obtained free from state coercion and third-party harassment—something considered a given for other health-care procedures.
TRAP laws are local problems, but national in reach and impact. More than half the states now have a TRAP law on the books creating onerous, unnecessary, and often unattainable licensing standards or hospital admitting privilege requirements for doctors, prohibitively expensive structural requirements for facilities, or both. What follows is both predictable and wrong: the closure of clinics. In one example, the omnibus anti-abortion law in Texas, HB 2, forced nearly half of the state’s clinics to close within a year, leading to a dramatic reproductive health-care crisis in the state.
It’s immoral to attack access to abortion, because it creates grave human suffering and is a proxy for attacking the legal status of women as persons. It’s especially a proxy for attacking the legal status of women of color and poor women, because they are both more likely to seek abortion and less likely to have the resources to buy their way past state-sponsored restrictions on abortion.
In the case of this TRAP law and restrictions upon abortion more generally, it’s important not just to take the moral high ground but also to step outside of an opposing framework that paints abortion as a matter of naughty behavior, because abortion is neither naughty nor properly understood as a behavior.
Yes, you read that right. It’s time to stop focusing on abortion as a behavior, because the availability of abortion, whether people use it or not, is just one aspect of reproductive autonomy that is central to identity. In the words of University of Texas Professor John Robertson:
Reproductive experiences … are central to personal conceptions of meaning and identity. To deny procreative choice is to deny or impose a crucial self-defining experience, thus denying persons respect and dignity at the most basic level.
So yes, TRAP laws are immoral and oppressive, and it’s important to say that first, because we need a new dialogue on abortion. But it’s also important to consider there’s a convincing case to be made that TRAP laws are unconstitutional by virtue of their design to force abortion clinic closures, a case made recently by U.S. District Judge Myron Thompson in his decision striking Alabama’s admitting privileges requirement:
The evidence compellingly demonstrates that the requirement would have the striking result of closing three of Alabama’s five abortion clinics .… Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would.
So what’s next? It’s time for Virginia to do the right thing and repeal and replace the current clinic regulations law, or amend it so that it is not used as a blunt force instrument for closing clinics down.
That position appears to be the side of Virginians. A statewide survey found 58 percent opposing the clinic regulations when it was explained they would require existing abortion clinics, which are outpatient facilities, to be reconstructed as if they were new hospitals. Last year’s election of Gov. McAuliffe was largely seen as a referendum on the harsh anti-abortion rights agenda of Governor Bob McDonnell (R) and attorney general and gubernatorial candidate Cuccinelli. Shortly before the closure of a public comment period on the review this July, The Washington Post reported that about 7,000 comments were sent to the Virginia Department of Health. According to a blog post published by NARAL Pro-Choice Virginia, 4,844 of those comments were pro-choice, anti-TRAP comments it hand-delivered in concert with allied organizations ProgressVA, the American Civil Liberties Union of Virginia, and Planned Parenthood Advocates of Virginia. An email sent the afternoon of the deadline by the Family Foundation of Virginia—an organization that lobbies for the TRAP law—said just 828 supporters had sent messages through their system.
The regulations have consistently been the subject of outcry; Indeed, it has been alleged in a pending lawsuit filed by the Falls Church Healthcare Center that Cuccinelli inappropriately pressured the board of health to drop a “grandfather clause” that would have exempted existing facilities from having to comply with the new regulations. Allegations of inappropriate pressure and politics surrounding the adoption of the regulations also led to the resignation of Dr. Karen Remley as Virginia’s health commissioner in 2012, and public dissent from multiple medical experts who had provided formal recommendations that were ignored.
Dr. Marissa Levine currently leads the Virginia Department of Health and will be charged with approving the results of the state Board of Health’s review expected by October 1. If the right decision is made—to amend or repeal and replace the regulations—the regulatory process could take another two years. It is clear advocates must keep watching and weighing in, and we cannot stop until clinic regulations are no longer used as an immoral political instrument with only one song: shutting down legal abortion facilities.
Note: Erin Matson serves on the board of directors of the NARAL Pro-Choice Virginia Foundation. The opinions expressed here are her own.