Dear Members of the Virginia Board of Health:

Alliance Defending Freedom is a national legal organization organized as a Virginia nonprofit corporation. We and our allied attorneys represent a number of former abortion clinic workers and others who have personally witnessed and testified to government agencies concerning health and safety violations in abortion clinics and we have assisted numerous women after they have been injured in abortion clinics. We encourage the Board to adopt the proposed abortion clinic regulations that will protect the health and safety of the women of the Commonwealth.

The Proposed Regulations Will Protect Women’s Health

Because of the lack of mandatory reporting requirements, it is impossible to know the actual number of serious injuries or deaths from abortions. The proposed regulations would allow Virginia to assess the safety of its abortion clinics by requiring such reporting. However, as abortion is an invasive medical procedure, it should come as no surprise that women die and suffer other serious medical complications, often requiring hospitalization, every year. Based on “voluntary reporting” to the Centers for Disease Control, the CDC determined: “In 2008, the most recent year for which data were available, 12 women were reported to have died as a result of complications from known legal induced abortions.”

The horrific conditions of abortionist Kermit Gosnell’s Philadelphia clinic, and the death of an immigrant patient for whose murder he is now on trial is well known. Just last month, a young woman died after an abortion by one of the most experienced and famed abortionists in the country, Dr. Leroy Carhart, in neighboring Maryland. This was the second known death of one of Dr. Carhart’s patients in recent years. This month, Maryland shut down three other abortion clinics following the death of another patient because “investigators found that it raised questions whether doctors at the clinic can handle an abortion that goes wrong.”

Both publicly released 911 calls and recent Virginia clinic inspections (see comment of the Family Foundation of Virginia) under the emergency rules that this Board should now make permanent demonstrate that Virginia is not immune from the problems plaguing its neighbors. Abortion, like any other invasive medical procedure, carries serious risks. When states permit political and other concerns to override their primary concern for the health and safety of their citizens, those risks become casualties.

The Board is not asked to opine on the morality or politics of abortion. Its charge is to protect the health of the citizens of the Commonwealth. Abortion is not constitutionally privileged over other similar medical procedures. There is nothing “undue” in requiring abortionists to abide by the same standards that apply to other medical procedures.

Until very recently, the abortion industry claimed that its goal was to make abortion “safe, legal and rare.” Planned Parenthood alone, the nation’s largest abortion provider, carries out nearly 900 abortions per day according to the numbers in its own annual report. That’s an abortion every 95 seconds. Roughly 28,500 abortions occur in Virginia each year. As the Guttmacher Institute reports, “abortion is a common experience.”

Abortion is also lucrative. Nationwide, abortion is a more than $1 billion industry. Planned Parenthood alone has revenues well exceeding $1 billion annually and a net worth of roughly the same. The industry can afford to make its “product” safer.

Abortion is not rare. It is all too common.

Abortion remains legal.

But the thousands of women injured or killed by abortions remind us that abortion is not “safe.” If abortion proponents remain concerned about avoiding “back alley abortions,” even in their own facilities, and even when safer standards might undercut their bottom line, these regulations should be unobjectionable.

The Proposed Regulations Are Constitutional

It is well established that the regulation of abortion clinics can be accomplished in an appropriate, constitutional manner to ensure patient safety. “In view of its interest in protecting the health of its citizens, the State necessarily has considerable discretion in determining standards for the licensing of medical facilities.” Simopolous v. Virginia, 462 U.S. 506, 516 (1983) (upholding Virginia regulations of abortion clinics). The United States Court of Appeals for the Fourth Circuit upheld South Carolina regulations nearly identical to those proposed here. The Court determined that the regulations:

Did not place an undue burden on a woman’s decision whether to seek an abortion in violation of the liberty interest protected by the Due Process Clause and…did not distinguish unreasonably between clinics that performed a specific number of abortions and those that did not in violation of the Equal Protection Clause.

See Greenville Women’s Clinic v. Comm’r, S.C. Dep’t of Health, 317 F.3d 357, 359 (4^th Cir. 2002) (on appeal after remand) (Greenville II).

The Fourth Circuit highlighted several factors that ensured the South Carolina abortion clinic regulations were constitutionally sound:

1. The Regulation serves a valid state interest and is little more than a codification of national medical and abortion association recommendations designed to ensure the health and appropriate care of women seeking abortions;
2. the Regulation does not ‘strike at the [abortion] right itself’;
3. the increased costs of abortions caused by implementation of the Regulation, while speculative, are even yet modest and have not been shown to burden the ability of a woman to make the decision to have an abortion; and
4. abortion clinics may rationally be regulated as a class while other clinics or medical practices are not.

Greenville Women’s Clinic v. Bryant, 222 F.3d 157, 159 (4^th Cir. 2000) (citation omitted) (original appeal) (“Greenville I”).

The proposed regulations are likewise constitutionally sound. The regulations are a compilation of standards recommended by the Centers for Disease Control, the Centers for Medicare and Medicaid Services, and the Joint Commission. Virginia’s current emergency regulations and South Carolina’s regulations differ only in approach to construction standards. South Carolina set forth explicit standards in its regulations. Virginia is required to incorporate the national Guidelines for Design and Construction of Hospital and Health Care Facilities by Virginia Code § 32.1-127.001. The Guidelines are the current standard for health care facilities.

Additionally, the regulation of abortion clinics does not “strike at the [abortion] right itself.” Instead, it seeks to ensure that women who seek abortion at facilities subject to the regulations do so in facilities that are clean, safe, inspected and licensed by the Commonwealth. These regulations no more deny a woman a right to an abortion than a fire marshal’s requirement that a church provide enough exits to make the church safe for its worshippers violates the First Amendment.

Whatever costs would be imposed here can be borne by the abortion industry and will be unlikely to be more than those imposed in South Carolina. Finally, the Court has clearly determined that it is permissible for states to regulate abortion clinics, while not extending that regulation to other types of medical practices. Greenville I, 222 F.3d at 159.

These regulations should survive any constitutional challenge.

The Attorney General’s Legal Advice is Accurate and Binding on the Board

Article V, §15 of the Virginia Constitution establishes that Virginia will have an Attorney General who “shall be elected by the qualified votes of the Commonwealth….” The General Assembly codified the responsibilities of the Attorney General. “All legal service in civil matters for the Commonwealth, the Governor, and every state…board…shall be rendered and performed by the Attorney General….” Virginia Code § 2.2-507(A).[1] The Attorney General is counsel to the agencies and boards of the Commonwealth and Virginia law specifically prohibits any other attorney from representing the Board: “[n]o regular counsel shall be employed for or by the Governor or any state…board.” The General Assembly emphasized the importance of only the Attorney General representing the Commonwealth. The “Attorney General may represent personally or through one or more of his assistants any number of state…boards…that are parties to the same transaction or that are parties in the same civil or administrative proceeding and may represent multiple interests….” Id. In other words, only the Attorney General may represent the Commonwealth, even if agencies or boards have competing or conflicting interests.[2]

This principle is illustrated by Hladys v. Commonwealth, 235 Va. 145, 366 S.E.2d 98 (1988). In Hladys, attorneys from the Office of the Attorney General prosecuted Dr. Hladys and argued for his termination as a Medicaid provider and different attorneys represented the presiding officer who ultimately made the determination to terminate his participation in the Medicaid program. Dr. Hladys appealed and alleged that the dual representation violated his due process rights. The Virginia Supreme Court disagreed. Citing Virginia Code § 2.1-121 (later recodified as § 2.2-507), the Court found that the Attorney General is required “to render ‘all legal services’ in civil matters for the Commonwealth….” Id. at 148. It concluded that the Attorney General “complied with that mandate by assigning separate assistants to prosecute the case and to advise the hearing officer on procedure.” Id.

It is undeniable that Virginia law requires the Board of Health to obtain its legal advice from the Attorney General. The Board of Health cannot rely on legal advice rendered by attorneys or organizations other than the Attorney General.[3]

Relying on legal opinions that conflict with advice provided by the Attorney General is unwise and places the Board at significant risk. As noted above, the Attorney General provides all legal representation in civil matters for the Board of Health. If the Board were sued, the Attorney General would represent the Board in Court. However, the Attorney General cannot ethically take a legal position that he does not believe is legally valid. If the Board disregards the advice of counsel, its ability to prevail in Court will be diminished. Additionally, Virginia Code § 2.2-1837 requires the establishment of a “risk management plan” to provide protection against liability for damages “[m]ade against any state department,…board…for acts or omissions of any nature while acting in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.” Refusal to follow the advice of the Attorney General by exceeding the scope of the Board’s authorization may endanger the Board’s risk management protection. Finally, disregarding the advice of counsel regarding the construction standards will likely result in the failure to enact regulations that can be certified and the Board will be forced to continue to meet and address this topic until regulations that can be certified are enacted.

Role of Office of the Attorney General in the Regulatory Process

The Administrative Process Act, Virginia Code § 2.2-4000 et seq., governs the regulatory process. Virginia Code § 2.2-4013 requires:

[t]he Governor shall adopt and publish procedures by executive order for review of all proposed regulations governed by the chapter by June 30 of the year in which the Governor takes office. The procedures shall include (i) review by the Attorney General to ensure statutory authority for the proposed regulations; and (ii) examination by the Governor to determine if the proposed regulations are (a) necessary to protect the public health, safety and welfare and (b) clearly written and easily understandable.

The Governor issued Executive Order 14 to comply with the provisions of Virginia Code § 2.2-4013. Executive Order 14 mandates that the regulatory package submitted to the Department of Planning and Budget “shall also include in the regulatory package a memorandum from the Office of the Attorney General (OAG) certifying that the agency has legal authority to promulgate the regulations being proposed.”[4]

Thus, proposed regulations cannot proceed through the regulatory process absent certification from the Office of the Attorney General that the Board of Health has the legal authority to promulgate such regulations. In this case, the Office of the Attorney General refused to certify 12 VAC 5-412-370 because the Board of Health exceeded its legal authority. The certification of a regulation is a crucial part of the regulatory process.

While the Board has discretion in promulgating regulations, that discretion is limited by Virginia Code § 1-248, which provides that “[a]ny ordinance, resolution, bylaw, rule, regulation, or order of any governing body or any corporation, board, or number of persons shall not be inconsistent with the Constitution and the laws of the United States or of the Commonwealth.” Thus, regulations promulgated by the Board cannot be inconsistent with the laws of the Commonwealth. The Board is unequivocally required by the General Assembly to promulgate regulations governing facilities in which first trimester abortions are performed. Virginia Code § 32.1-127(B)(1). The Office of the Attorney General has determined that the 12 VAC 5-412-470 exceeded the Board’s authority because it conflicts with Virginia Code § 32.1-127.001. The Board should thus promulgate regulations that are consistent with its statutory authority and that can be certified by the Office of the Attorney General in order to comply with the General Assembly’s directive.

Existing Abortion Facilities Subject to Licensure

Must Comply With the Construction Standards

The Attorney General was also correct to determine that the Board lacks the authority to grandfather existing abortion clinics from the construction standards. The Virginia Supreme Court has determined that “…the primary objective of statutory construction is to ascertain and give effect to legislative intent.” Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337 (1983). When the language of a statute is plain and unambiguous, a court is bound by the plain meaning of that language. Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001); Earley v. Landsidle, 257 Va. 365, 369, 514 S.E.2d 153, 155 (1999); Ragan v. Woodcroft Vill. Apartments, 255 Va. 322, 325, 497 S.E.2d 740, 742 (1998). Therefore, “when a statute’s language is unambiguous, courts cannot give that language a construction that amounts to holding that the General Assembly did not mean what it actually has stated.” Volkswagen of America v. Smit, 266 Va. 444, 587 S.E.2d 526 (2003). The Virginia Supreme Court has held:

[w]e presume that the legislature chose, with care, the words it used when it enacted the statute. Courts cannot add language to the statute the General Assembly has not seen fit to include. Nor are they permitted to accomplish the same result by judicial interpretation. Where the General Assembly has expressed its intent in clear and unequivocal terms, it is not the province of the judiciary to add words to the statute or alter its plain meaning.

Jackson v. Fid. & Deposit Co., 269 Va. 303, 608 S.E.2d 901, 906 (2005) (citations and internal quotation marks omitted) (Emphasis added).

Virginia Code § 32.1-127.001 provides:

Notwithstanding any law or regulation to the contrary, the Board of Health shall promulgate regulations pursuant to § 32.1-127 for the licensure of hospitals and nursing homes that shall include minimum standards for the design and construction of hospitals, nursing homes, and certified nursing facilities consistent with the current editiion of the Guidelines for Design and Construction of Hospital and Health Care Facilities issued by the American Institute of Architects Academy of Architecture for Health.

§ 32.1-127 defines “hospital” to include abortion clinics. Thus, the Board must promulgate regulations for the licensure of abortion clinics that include construction standards that meet the requirements of Virginia Code § 32.1-127.001. The enabling legislation enacted during the 2011 General Assembly session did not exclude existing abortion clinics from the requirements that they be subject to construction standards. Additionally, these facilities are all new facilities for licensure because none were licensed prior to the action of the General Assembly.

The Virginia Supreme Court has held that “the ‘legislature chose, with care, the words it used when it enacted the . . . statute,’” Jackson v. Fid. & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901 (2005)(quoting Simon v. Forer, 265 Va. 483, 490, 578 S.E.2d 792, 796 (2003)). It is well established that “[c]ourts cannot ‘add language to the statute the General Assembly has not seen fit to include.’” Id. (quoting Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d 561, 564-65 (2003)). In addition, this Court has determined that “[a]mendments of the statutes or exceptions thereto can only be added by the legislature and not by the courts or the administrative officers of the State.” Richmond v. Henrico County, 185 Va. 176, 189, 37 S.E. 2d 873, 879-880 (1946) (emphasis added). If any exemption of existing abortion clinics from the construction standards is to be created, the responsibility for such an exception necessarily rests with the General Assembly.

Virginia’s women deserve better. We strongly encourage the Board to adopt these regulations.

Sincerely,

M. Casey Mattox

Senior Counsel