The American Civil Liberties Union of Virginia supports the review of 12 VAC 5 – 412, the medically unnecessary regulations of facilities providing five or more first trimester abortions a month in Virginia. Far from making women safer,  the current regulations endanger women by imposing  burdensome regulations on providers of a safe procedure that are completely out of line with the standards for abortion care and the standards of care applicable to  other comparable medical procedures in Virginia and throughout the nation. These regulations do not improve patient safety; instead they endanger women’s health by undermining the ability of women to access reproductive health care from trusted, safe providers.  We ask that you withdraw the current regulations and promulgate new evidence-based regulations for women’s health centers, and other facilities providing five or more first trimester abortions a month, that include only provisions shown to be directly related to assuring patient safety and protecting public health.

The current rules governing providers of abortions in the first trimester of pregnancy are about politics, not medicine. Three years ago, the Virginia Department of Health convened a panel of six top medical experts from across the Commonwealth to provide advice on the regulations that should apply to such facilities. These experts recommended evidence-based regulations that aligned with the Department and Board of Health’s mission to promote and protect the health of all Virginians. Nonetheless, the Department of Health ignored their own experts’ recommendations and instead drafted regulations to achieve a political outcome (limitation on access to abortion services) rather than to protect patients from harm.  

The current regulations require any facility (doctor’s office, women’s health center, or clinic) performing five or more first trimester abortions a month to meet physical plant requirements designed for new ambulatory surgical centers - requirements that no other existing health care facility in Virginia must meet as a condition to performing minimally invasive outpatient surgical procedures. This is true despite the fact that all available medical evidence confirms that first-trimester abortion is a common and extremely safe outpatient procedure, safely provided in office based settings.

The current rules apply physical plant requirements, the 2010 Guidelines for Design and Construction of Health Care Facilities (the Guidelines), to all providers of five or more first trimester abortions a month regardless of type of facility, though on their face the Guidelines apply only to new construction and significant renovations or additions. The Guidelines, published by the Facility Guidelines Institute and formerly published by the American Institute of Architects, and relied on by many regulatory agencies in creating new regulations for health care facilities, are "intended as minimum standards for designing and constructing new health care facility projects.” (Facility Guidelines Institute, Guidelines for Design and Construction of Health Care Facilities 4 (2010)). They are not intended to apply to existing facilities, except to the extent that those facilities are in the process of undergoing significant renovation. In those circumstances, the Guidelines specify that "renovation projects and additions to existing facilities, only that portion of the total facility affected by the project shall be required to comply with the applicable section of these Guidelines.” (Id. at 6) It simply makes no medical sense to require existing health care facilities to comply with standards that were never intended to apply to them. No provision of state law requires the Board to incorporate the current version of the Guidelines for any existing facility. Thus, the Board’s decision to impose these Guidelines on existing facilities that provide first trimester abortions is contrary to the intent of the Guidelines, was not driven by evidence-based medicine, and can only be understood as an ideologically driven decision.

The current medically unnecessary regulations are designed to shut down access to abortion services by requiring facilities that offer such services to make costly, medically unnecessary renovations or close. This jeopardizes women’s health by making it more difficult for women to access comprehensive health services, including family planning, cancer screenings, and legal abortion. If the regulations are not withdrawn, tens of thousands of Virginia women and families will lose access to preventative and critical medical care. Three of twenty-one women’s health centers in Virginia have already been forced to close, in part, or to stop providing abortion services because of these burdensome and medically-unnecessary regulations. This result directly conflicts with the Department and Board of Health’s stated mission to protect public health. 

Medical facilities that provide surgical procedures similar to abortion or procedures that have a higher complication rate than first trimester abortions do not face the same restrictions as abortion providers.  Abortion in the first twelve weeks of pregnancy is an extremely safe and common outpatient procedure.  Approximately 88% of the women who obtain abortion care are less than thirteen weeks pregnant.  Of these women, 97% report no complications; 2.5% have minor complications that can be handled at the medical office or abortion facility; and less than 0.5% have more serious complications that require some additional surgical procedure and/or hospitalization.^[1] Yet, while abortion providers face these medically unnecessary regulations, other similarly situated medical providers do not. For example, colonoscopies have a much higher rate of complication than abortion and are commonly performed in similar outpatient clinics, yet those clinics and doctors are not subjected to these types of regulations and politicians are not calling for them to be. Rather, only facilities that provide abortions are singled out for these medically unnecessary regulations.  The physical plant requirements have no relation to the safety of women’s health center patients.  

We urge the Board of Health to withdraw the current regulations of women’s health centers and promulgate new regulations that will, in fact, protect women’s health, preserve access to comprehensive reproductive health care, and be based in science and medicine.