May 5, 2015 — Abortion clinic building standards adopted by Virginia in 2013 cannot apply to pre-existing facilities, according to a legal opinion from state Attorney General Mark Herring (D), the Richmond Times-Dispatch reports (Nolan, Richmond Times-Dispatch, 5/4).
Virginia's rules, passed under former Gov. Bob McDonnell (R), specify various building standards, including exam room size, hallway width and ceiling height. The rules were written to specifically apply to health centers that provide abortion services (Women's Health Policy Report, 12/5/14).
During the regulatory process to implement the rules, the Virginia Board of Health initially voted to grandfather in pre-existing clinics so they would not be subject to the new design and construction standards (Portnoy/Vozzella, Washington Post, 5/4). However, the state Board of Health reversed its decision after then-Virginia Attorney General Ken Cuccinelli (R) in an opinion told the board that the rules should apply to pre-existing facilities (Fain, Hampton Roads Daily Press, 5/4).
The rules went into effect in June 2013 (Washington Post, 5/4). In addition to the design and construction regulations, the rules also created new requirements for inspections, recordkeeping and medical procedures for health centers that provide abortion services.
According to abortion-rights supporters, the rules have resulted in the closure of two Virginia clinics and imposed unnecessary costs on abortion providers with the aim of shuttering more clinics (Women's Health Policy Report, 12/5/14). In addition, one clinic stopped providing abortion services after the passage of the initial rules (Washington Post, 5/4).
Of the 18 clinics remaining in the state, five completed construction to be in compliance with the regulations (Women's Health Policy Report, 12/5/14). Meanwhile, 13 clinics have been granted exemptions to have more time to be in compliance with the regulations (Washington Post, 5/4).
Review of Rules
In May 2014, Gov. Terry McAuliffe (D) appointed five abortion-rights supporters to the state Board of Health and ordered the board to conduct a review, which began in June with a 45-day public comment period.
In October 2014, Virginia Health Commissioner Marissa Levine suggested that the state overhaul the regulations, noting in a letter to McAuliffe that the state received more than 14,000 comments on the rules, the majority of which called for a repeal (Women's Health Policy Report, 12/5/14). As part of the review, Levine requested that Herring write an advisory opinion on the rules (Washington Post, 5/4).
In December 2014, the Virginia Board of Health voted 13-2 to begin a process to revise the regulations (Women's Health Policy Report, 12/5/14).
Details of Legal Opinion
Herring's advisory opinion only applies to the rules on building standards and does not call into question the board's authority to alter clinical operating rules for current clinics, according to the Hampton Roads Daily Press (Hampton Roads Daily Press, 5/4).
Herring said in a statement that the previous administration's advice to the state board of health was "incorrect." He said, "That inappropriate intrusion produced regulations that would impose a de facto abortion ban in Virginia by forcing many health care facilities to either shut down, leaving thousands of women without access to critical services, or to stop offering abortion services."
Herring added, "Virginia women can make their own health care decisions and they have a right to safely and affordably access the full range of health care services they may need in the communities where they live" (Richmond Times-Dispatch, 5/4).
According to the Post, the advisory opinion does not have immediate implications for pre-existing clinics. However, it could have an effect on the Virginia Board of Health as its members revise the regulations.
The board is set to vote on the revised regulations on June 4. Any proposed changes would be subject to review by McAuliffe and Herring. In addition, the changes would be subject to a 60-day period for public comment, concluding with a final vote that is expected in fall 2015, according to the Post (Washington Post, 5/4).
McAuliffe praised Herring's advisory opinion. He said, "These regulations were designed not to keep Virginia women safe, but to limit their constitutional right to make their own decisions" (Richmond Times-Dispatch, 5/4).
Kathy Greenier, director of the ACLU of Virginia's Reproductive Freedom Project, said her group "welcome[s] the correction of that deeply flawed legal analysis that resulted in the imposition of medically unnecessary and financially burdensome requirements that would drive abortion providers out of business."
Meanwhile, Victoria Cobb, president of the antiabortion-rights Family Foundation of Virginia, said the ruling "ignor[es] the will of the legislature" (Washington Post, 5/4).