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Virginia board OKs stiff rules for abortion clinics

Heated testimony preceded vote

- The Washington Times - Thursday, September 15, 2011

RICHMOND — The Virginia state Board of Health on Thursday passed new regulations for abortion facilities that critics say are among the most stringent such measures in the country and could result in the shuttering of the majority of the state's abortion providers.

The board voted 12-1 Thursday to pass the temporary regulations after impassioned public testimony and hours of deliberations by members of the board.

The new rules would require existing facilities that provide five or more first-trimester abortions per month to meet the same standards as surgery centers built after 2010, including rules on specific architectural standards, staffing levels and medical supplies.

"I think that things were done very professionally and thoroughly and thoughtfully," Chairman Bruce Edwards said after the board's vote.

But outbursts among the crowd of about 100 erupted more than once during the public comment period and the board's lengthy debate, prompting Mr. Edwards to gavel down one shouting woman. A man who yelled comments that the board deemed inappropriate was ushered out of the room.

The board heard from 32 speakers, with opponents — who have contended that the rules were a backdoor attempt to deny women access to abortions — outnumbering supporters by a ratio of about 2-to-1.

Dr. William Nelson, a former official at the state Department of Health, said there was "no shred of data that supports that this procedure is unsafe."

He said the proposed regulations were part of a "sinister campaign" to push abortions to the back corners of society.

Supporters have maintained that the regulations are about ensuring women's safety and that fears about shutting down abortion providers are overblown.

"The abortion industry in the United States is a billion-dollar industry," said Chris Freund, a spokesman for the conservative Family Foundation. "They can afford these standards if they choose to meet them."

A Quinnipiac University poll released Wednesday seemed to suggest that opponents' arguments had not gained traction with voters.

While 50 percent of respondents said they supported abortion rights, the survey of 1,368 registered voters showed that just a quarter of voters were familiar with the regulations. Of those, more than half, or 51 percent, approved of them.

Among other things, the rules would allow Department of Health employees to inspect facilities and be provided with patient medical records. They would not apply to surgery centers that provide other procedures, such as oral surgery or colonoscopies. Abortion clinics are regulated as outpatient facilities, as are oral and cosmetic surgery centers. Second-trimester abortions must be performed in hospitals.

The board passed the draft regulations, with several amendments, on a 12-1 vote. The lone dissenting vote was cast by James H. Edmondson Jr., a McLean developer.

Nine members of the Board of Health were appointed by Gov. Bob McDonnell, a Republican who favors the regulations, and six — including Mr. Edmondson — were appointed by Mr. McDonnell's Democratic predecessor, Tim Kaine.

Two Kaine appointees, H. Anna Jeng and Bennie Marshall, both registered nurses, were absent from Thursday's meeting.

"It's disappointing," Delegate Charniele L. Herring, Alexandria Democrat, said of the vote. "I am not surprised, given the appointees that are sitting on the board."

Ms. Herring also criticized the speed of the process by which the regulations were developed.

The rules were drafted after legislation mandating them narrowly passed the General Assembly this year. The legislation, introduced by state Sen. Ryan T. McDougle, Hanover Republican, specified that they be published within 280 days of Mr. McDonnell's signing the bill. They were to be treated as "emergency regulations" not subject to the normal public comment and review process, which can take two years or longer.

"I suspect that there will be a court challenge, and this could have been avoided if this wasn't an emergency procedure and this was a careful, drawn-out process," Ms. Herring said.

The next step after the vote is executive branch review, where the regulations will pass through the offices of the state attorney general, the Department of Planning and Budget, Health and Human Services, and the governor's office.

Temporary regulations will go into effect on Jan. 1 and remain in place for 12 months while permanent rules are drafted, though Mr. McDonnell has the authority to extend them up to an additional six months.

While a court challenge is possible, similar rules have met with mixed reception during litigation elsewhere in the country.

A federal judge recently enjoined a Kansas law attempting to impose new regulations on facilities performing more than five non-emergency abortions per month and dictate specific requirements, for example, on the size and temperature of recovery and procedure rooms.

In South Carolina, a law that also requires abortion clinics to meet the same standards as hospitals has withstood legal challenges. Virginia Attorney General Kenneth T. Cuccinelli II invoked the case when he issued an official advisory opinion last year saying that Virginia had the authority to regulate facilities that provide first-trimester abortions.

Maryland also is drafting regulations that require clinics to be licensed by the state, be subject to inspection and have a clinic staff member available at all times in case an emergency occurs.

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