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The American Civil Liberties Union of Virginia opposes the draft regulations for women’s health centers in the state, crafted by the Department of Health, and now before the Board of Health for review. Far from improving the outcome of an already safe procedure, the draft regulations would endanger women by imposing a regime of unprecedented severity, completely out of line with the standards for abortion care and for all other comparable medical procedures – in Virginia and throughout the nation.  No state has ever passed, and no court has ever upheld, such burdensome regulations.  With no connection whatsoever to improving patient safety, these draft regulations would do nothing but endanger women’s health by undermining their ability to access care from good, safe providers.

Most onerous and shocking among the sections of the draft regulations is section 12 VAC 5-412-380, which requires that within two years, existing women’s health centers come into compliance with three chapters of the 2010 Guidelines for Design and Construction of Health Care Facilities. However, these Guidelines are written to apply exclusively to new construction, and never to existing facilities. There is no legitimate legislative purpose for thus singling out facilities that provide abortion care, removing them from the existing regulatory schemes applicable to facilities providing similar or riskier procedures, and subjecting them to uniquely burdensome and medically unnecessary regulations.

By limiting the ability of qualified providers to offer safe abortion care, and thus exacerbating the shortage of abortion providers, these draft regulations could “plac[e] a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.” Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992).

The Attorney General is charged by law with the responsibility to review proposed regulations and to opine on the legal authority of the Board to issue them. The law does not, however, give the Attorney General’s Office veto power over your decisions regarding what to include in final rules. The Attorney General’s Office has given you and the Department “advice.” The Office’s advice should inform the Board’s action but it cannot and should not decide it.

The Board’s statutory authority to regulate comes from Virginia Code 32.1-127(A), which provides for the promulgation of regulations for health care facilities “in substantial conformity to the standards of health, hygiene, sanitation, construction and safety as established and recognized by medical and health professionals and by specialists in matters of public health and safety….”  Courts in Virginia have been clear that the authority allowing an agency to promulgate regulations also obliges the agency to only adopt rules that are actually consistent with that statute’s purpose.

These proposed permanent regulations do not meet that standard.  Most dramatically, proposed regulation 370, the architectural requirements, idirectly contradicts what specialists and professionals have actually recommended about appropriate building regulations for health care facilities.  The experts who developed and wrote the 2010 Guidelines that are being applied to women’s health centers explicitly said that they should only apply to new construction or new renovations.  Proposed regulation 370 ignores those explicit statements.  It is therefore not in conformity with the standards for construction and safety established and recognized by specialists, which means that it is not consistent with the purpose of the statute giving the Board authority to act here.   Although the Department of Health and Attorney General’s Office has stated that the medically unnecessary and burdensome architectural requirement is mandated both by the enabling statute, SB 924, and by Virginia Code § 32.1-127.001, this assertion is mistaken.  In fact, neither statute mandates that existing facilities meet the Facilities Guidelines Institute standards and clearly no other type of facility in the state has been forced to rebuild its existing building as a result of Virginia Code § 32.1-127.001.  Indeed, we are aware of no other instance in which Virginia has required existing healthcare facilities to comply with regulations or guidelines designed for new construction, including after the passage of Virginia Code § 32.1-127.001.  For example, the Board of Health adopted new “design and construction” standards for hospitals, nursing homes, hospice facilities and outpatient surgical facilities in 2005 and 2006.  In every case, the Board applied the Guidelines only to “all construction of new buildings and additions, alterations or repairs to existing buildings,” not to existing facilities that are not undergoing significant construction.

The regulations dealing with on-site inspection permit Department of Health employees to arrive on the premises at any time and requires the facility to give them access to the facility and to patient medical records and patient lists, without appropriate protection for patient confidentiality. The temporary regulations included a requirement that the abortion facility provide the surveyor with a list of current patients. This provision unnecessarily infringes on the confidentiality of the patients seeking medical care at the time that an inspector chooses to arrive on the premises. Despite receiving comments on the draft regulations encouraging VDH to strengthen the confidentiality protections, VDH chose to make the permanent regulations substantially worse by requiring a list of all patients for the previous 12 months, as well as a list of patients receiving services on the day of the survey, to be provided to the surveyor. Also, several different sections of the draft permanent regulations give VDH the right to request all ownership information and many types of facility policies and procedures, such as facility security and disaster preparedness plans, without any requirement that these documents be kept confidential.

Adding a new provision requiring the names of patients for the past 12 months is not a mere clarification of the term “current patients” but rather an unprecedented intrusion on patient privacy. VDH and the Attorney General’s Office cites to Section 32.1-25 of the Code of Virginia, part of the hospital code, in their response to requests for increased patient and provider protections. The Department has already said it sees no need to enforce more than a handful of the statutes in the hospital code, and the Code sections they mention do not include Section 32.1-25. Despite the statement by VDH and the Attorney General’s Office that their staff are bound by confidentiality laws and agency policy, a unique audience exists whose sole purpose is to collect information about abortion providers and their patients. It is in the best interests of VDH to protect this information from any potential disclosure.

The ACLU of Virginia therefore urges the Board of Health to amend these regulations to reflect sound public health policy based on medically accurate evidence and in line with the standard of care for abortion and other comparable medical services.