Family Research Council

801 G Street, NW

Washington, D.C. 20001

March 29, 2013

Virginia Department of Health

State Board of Health

P.O. Box 2448
Richmond, Virginia 23218-2448
109 Governor Street
Richmond, Virginia 23219

Submitted Electronically

Re: Regulations for Licensure of Abortion Facilities

Dear Sir or Madam:

On behalf of the Family Research Council, which represents hundred of thousands of American families, we respectfully submit the following comments on the Regulation for Licensure of Abortion Facilities, 12VAC5-410-10.

The Family Research Council (FRC) supports enhanced abortion clinic regulations and asks the Board to adopt regulations consistent with the entire statute passed by the Virginia Assembly, which required all clinics to meet the same standards as new hospital construction. We believe these regulations must include appropriate building standards for abortion clinics.  Some may argue that regulations are not necessary, but the fact remains: Abortion is one of the least-regulated surgical procedures in the United States. As a result, the procedure often takes place in unsanitary and unsafe conditions, which threaten the health of women.

I. Results of Virginia Clinic Inspections

Last fall, Freedom of Information Act audits revealed that after inspections of abortion clinics took place, as mandated by the new regulations, Virginia abortion clinics were found to be lacking in adequate health and safety, with nine out of 20 total clinics having as many 80 violations [1]. The violations included inadequate “infection prevention . . . poor equipment maintenance”[2]. Following these revelations, even more violations were found in inspections conducted after June, as noted by the Family Foundation [3]. In a Falls Church clinic, blood was observed on tables that were deemed “ready” for procedures by clinic staff [4]. In Alexandria, inspectors found that at the  Abortion Center the doctor performing vaginal ultrasounds used gloves but did not wash his hands. The administrator of the clinic noted, “He never washes his hands, he always uses gloves” [5]. Finally, in the Roanoke Medical Center for Women, staff failed to disinfect procedure jars and stoppers, cots, and a lab chair in between patients. Additionally, one of the vacutainer needle holders had what appeared to be blood on the hub, which attaches to the needle used to take the patient’s blood [6]. Regardless of one’s beliefs regarding abortion, each woman deserves to know that an abortion clinic is as safe and healthy as a beauty salon or veterinary clinic. Right now, not every woman seeking an abortion can have this confidence.

The regulations passed by the Virginia Department of Health and certified by the Attorney General would require abortion clinics to conform to the same safety standards set for other similarly situated health care facilities. This is eminently reasonable and completely constitutional. Even in Roe v. Wade, the U.S. Supreme Court recognized that the state has “a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that ensure maximum safety for the patient” [7].

II. Regulations Ensure Safety for Women Seeking Abortion

Abortion proponents have long touted the idea that the legalization of abortion would usher in an era of increased safety and better health for women. The legalization of abortion supposedly ensured that women would be able to obtain abortions performed by skilled professionals and would not be exposed to sub-standard medical facilities. In the 40 years since Roe was decided, however, abortion facilities have remained largely unregulated and thus, have offered little assurances in regard to the safety and proper care for women.  Courts consistently have upheld regulations on abortion clinics based partially on the fact that such regulations essentially codify abortion industry recommendations. For instance, in upholding South Carolina’s abortion clinic regulations, the Fourth Circuit noted that regulations are “little more than a codification of national medical-and abortion-association recommendations designed to ensure the health and appropriate care of women seeking abortion” [8]. Thus, regulations are modeled after national abortion care standards promulgated by abortion providers and serve the legitimate purpose of providing proper care to women.

III. Invalidity of the “Cost Prohibitive” Argument

The argument that the regulations are cost prohibitive to abortion providers or that an effect of the regulations would be decreased number of providers because of potential for increased costs carries no legal significance.  The only right addressed by either Roe or Casey is the right of the “woman herself- not her husband, her parent, her doctor or others...” [9]. There is absolutely no right expressed by the Court or the Constitution for an abortion to cost a certain amount or for abortion providers to maintain a lucrative practice. Although the choice to procure an abortion is the woman’s alone, she has no right to be financially insulated in that choice [10]. The State has a legitimate interest in regulating abortion from the outset of pregnancy as long as it does not place an undue burden or substantial obstacle in the path of a woman seeking an abortion prior to viability.  These regulations fall well within that state interest, and do not place a substantial obstacle or undue burden on a woman seeking an abortion [11].  

Federal courts, including the Fourth Circuit, [12] have upheld clinic regulations on the basis that even if regulations inconvenience providers or have extra costs associated with compliance, they do not have the effect of unduly burdening a woman seeking an abortion. Rather, any burden in cost or compliance rests solely with the abortion provider, on whom no rights or protections were conferred under Roe. The Court in Casey noted, “the fact that a law which serves a valid purpose, one not designed to strike at the [abortion] right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it” [13]. The common-sense health regulations being proposed in Virginia certainly fall under that category. These regulations have not been imposed for the purpose of striking at the right to an abortion. Rather, their purpose is to ensure that women are protected and that abortion clinics are regulated just as stringently as Virginia regulates other medical health clinics or hospitals.

IV. Conclusion

Abortion procedures, particularly late-term abortions, carry grave risks such as hemorrhaging, infection, instrumental injury, retained placenta or portions of the fetus, and psychological damage [14]. Particularly in light of the horrific conditions documented in facilities that remained unregulated, such as Kermit Gosnell’s clinic in Pennsylvania, [15] Virginia is wise to impose these common-sense regulations in order to mitigate or possibly prevent injury to or death of women seeking abortions in Virginia.

The gravity of the decision to have an abortion cannot be overstated. It is up to the Commonwealth of Virginia to make sure that these clinics are safe, sanitary, and run by licensed professionals. The cost of compliance of these regulations is minimal when compared with the effect these regulations will have in protecting the health and safety of women. FRC supports the proposed regulations and urges the Board to adhere to the requirement of the law, as passed by the Assembly, and as described by Attorney General Cuccinelli.

Sincerely,

/s/ Anna Higgins, J.D.

Director, Center for Human Dignity

Family Research Council

Footnotes: