Dear Dr. Levine and Board of Health Members,

The following is a comment submitted by the Virginia Coalition to Protect Women’s Health (“the Coalition”) regarding the Virginia Board of Health’s (the "Board") rulemaking process to amend the regulations for the licensure of abortion facilities, 12 VAC 5–412. 

The members of the Coalition are health care providers and women’s health advocates. We support proven and medically sound regulations that genuinely advance the public health. 

Given the decisive ruling by the United States Supreme Court in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), we call on the Virginia Department of Health (the “Department”) and the Board to support repeal of the Virginia statute that imposes hospital licensing requirements on abortion providers. These requirements are not justified by medical necessity and serve only to burden women by limiting access to safe, legal abortion care.

In the interim, we ask that the Department complete expeditiously the process of adopting the amendments to the regulations passed by the Board in October 2016, certified by the Attorney General in November 2016, and approved by Governor McAuliffe in January 2017.

We also incorporate by reference previous comments submitted by the Coalition that express our support for repeal or amendment of various other sections of the regulations for licensure of abortion facilities.

Until the state law is changed or set aside as unconstitutional, the approved amendments represent an important first step toward ensuring that the regulation of the Commonwealth’s abortion providers is in compliance with federal law and grounded in medical evidence – including conclusive medical evidence that abortion is one of the safest medical procedures provided in the United States.

The targeted regulation of abortion providers (“TRAP”) is one of over seventy-nine policy proposals advanced by Virginia lawmakers since 2010 intended simply to cut off Virginia women’s access to safe, legal reproductive health care, including abortion.

The Department currently possesses the critical opportunity to finalize the approved amendments to burdensome and unnecessary ideological regulations that were promulgated as a result of political pressure and over the objections of the medical community.

Health care providers in Virginia, including abortion providers, should be subject only to those laws and regulations that legitimately advance patient health and safety, that do not impose an undue burden on access to health care, and that are supported by more than mere political ideology. As the United States Supreme Court decisively ruled in Hellerstedt, laws and regulations targeting abortion providers that fail to advance patient health and safety in a manner “capable of withstanding any meaningful scrutiny” are presumptively invalid. 136 S. Ct. at 2319. Moreover, the Court ruled that, even in instances where a law or regulation legitimately confers a medical benefit, the benefit derived from the law or regulation must outweigh the burden on access to abortion that the law or regulation imposes. Id. at 2309-10, 2317-18. Accordingly, at the very least, the Board may not promulgate any regulation of abortion providers except to the extent that the medical benefit derived from the regulation, if any, outweighs the burden the regulation imposes. Virginia health care laws and regulations governing abortion must legitimately advance patient health and safety and ensure patients will have increased, not diminished, access to high-quality, essential reproductive health care services.

To that end, and in addition to the reasons articulated by the American Congress of Obstetricians and Gynecologists (“ACOG”) and the National Abortion Federation (“NAF”) in previous comments, we continue to express our opposition to the underlying law requiring first trimester abortion providers to meet hospital licensing rules, and our continued support for amending those portions of the current licensing regulations governing the design and construction of abortion facilities in the Commonwealth.

We note that medical experts, including ACOG and the American Medical Association, have concluded that there is absolutely no medical, health, or safety-related justification for requiring that first-trimester abortion procedures be provided in a setting equivalent to a hospital or ambulatory surgical center (“ASC”). We additionally note that the application of standards from the 2014 Guidelines for Design and Construction of Hospital and Outpatient Facilities of the Facility Guidelines Institute (commonly known as the “FGI Guidelines”), many of which are clearly intended to address issues that are only present in the context of surgical procedures requiring a sterile environment, are not medically appropriate for health centers providing abortion services.

This is especially true of facilities or offices in which only medication-induced abortion is performed. First-trimester abortion is a non-invasive, office-based, outpatient procedure that is safely provided in non-ASC medical offices throughout the country and in the Commonwealth.

Requiring providers that provide five or more abortions per month to adhere to hospital or ASC regulations, including design and construction requirements, does nothing to advance patient health and safety. Rather, it diminishes patient health and safety by forcing high-quality health care providers –especially those smaller businesses that are required to be protected against excessive government regulations placing an undue burden on small businesses -- to discontinue providing abortions – leaving Virginia women with continuously decreasing options to exercise their Constitutional right to access safe and legal abortion, particularly in less populated regions of the state.

The intent behind sham TRAP laws and regulations is clear and well-documented. In Virginia and across the country the purpose is simply to produce a de facto ban on abortion where legislators, thus far, have been unable to adopt unconstitutional bans outright by legislative fiat. This purpose is not only unconstitutional, it puts women’s lives and health at risk.

To keep women safe and prevent such health risks, the Department should promptly finalize the adopted amendments in the current licensing rules that reflect the medical reality that first-trimester abortion is one of the safest outpatient medical procedures performed in Virginia. We call on the Department to do so, thereby allowing implementation of changes to the existing licensing rules without delay.

We also call on the Board, the Department, the Attorney General, and the Governor to become leading advocates for the repeal of the underlying law that would eliminate the harm caused by sham TRAP laws and regulations, and protect and preserve a woman’s right to access a safe, legal abortion in the Commonwealth.

The Virginia Coalition to Protect Women’s Health is composed of the following entities and organizations:

ACLU of Virginia

Annandale Women and Family Center

Center for Reproductive Rights

Falls Church Healthcare Center

Feminist Majority Foundation

NARAL Pro-Choice Virginia

National Abortion Federation

Planned Parenthood Advocates of Virginia

Progress Virginia Education Fund

Richmond Medical Center for Women

Charlottesville Medical Center for Women

Peninsula Medical Center for Women

Roanoke Medical Center for Women