As I stated earlier in the year on the new regulations of abortion clinics, in all previous instances in which the Board of Health has regulated health care facilities, new regulations have applied only to the "construction of new buildings and additions, alterations or repairs to existing buildings.” This means that existing facilities, which were not planning on undergoing significant construction or renovation, were not required to meet new building standards (see Virginia Department of Health, Office of Licensure and Certification, Design and Construction of Health Care Facilities, July 1, 2006) All existing facilities should be allowed medically appropriate “grandfathering.”  It is also inappropriate for the Board to apply this new law selectively; there is no evidence that women’s health care facilities are in need of “special” treatment over and beyond other similar existing clinics.

The regulations for such centers now force existing providers of first trimester abortion to meet more restrictive building standards than any other existing health care facility – more strict than hospitals, nursing homes, hospices, oral and plastic surgery clinics, and other outpatient facilities. There is no legitimate reason to impose a different interpretation of the law between these types of clinics.

The Attorney General has advised the Board of Health that it has no authority to differentiate between new and existing facilities when applying new regulations, and therefore does not have the authority to grandfather in existing clinics. If this is the case, then all previous grandfathering is illegal and ALL facilities and hospitals must meet these new architectural requirements. 

The law cannot, and should not ever, be applied selectively.