The Virginia Board of Health on Friday is scheduled to revisit its decision to exempt existing abortion facilities in the state from permanent hospital-like regulations — the latest chapter in a battle that has been raging for nearly two years over the highly-charged issue.
The board in June voted 7-4 to "grandfather" existing facilities that perform five or more first-trimester abortions per month into compliance with new permanent rules, which mandate specific guidelines on items like hallway width and operating-room sizes. The move shocked many conservative advocates of the new regulations, since temporary regulations already in place had been passed in September that did not exempt the state's 20 or so existing facilities.
In a July memo, senior assistant Attorney General Allyson K. Tysinger wrote to Department of Health Commissioner Karen Remley that the attorney general's office would not certify the revised guidelines as part of the regulatory process, saying the board does not have the authority to adopt the amended regulations because they conflict with legislation passed by the General Assembly last year.
Ms. Tysinger wrote in a memo to board members this week that the language in the law requiring the board to draft rules for clinics that include hospital-like standards is "clear and unambiguous" and that it mandates the facilities be classified as hospitals.
"The General Assembly did not provide for an exemption from licensure, or an exemption from meeting minimum standards for design consistent with the Guidelines for Design and Construction of Hospitals and Health Care Facilities, for entities that have currently been operating but are now subject to regulation," she wrote.
In the memo, which was obtained by the Virginian-Pilot, Ms. Tysinger also said the office can decline to represent board members in subsequent litigation related to their action if they choose to ignore the advice, though "such decisions are made on a case-by-case basis."
Meanwhile, a significant portion of Virginia's medical community is lending its support to the amendment. Nearly 200 doctors and medical professionals signed an open letter directed at the Board of Health stating that the issue at hand was not about abortion but about the board's ability to remain an independent, objective public advisory group.
"Although the purported intent of these regulations is to protect women's health, the safety record of these clinics in the Commonwealth has been exemplary," they wrote.
But the conservative Family Foundation released findings they received this week after a public information request documenting numerous health code and safety violations in nine clinics across the state.
For example, an inspection of A Tidewater Women's Health Clinic in Hampton Roads found a freezer used to store "collected conception material" with "blood and un-bagged conception material frozen to the inner bottom surface."
"Even with time to prepare for announced inspections these centers were found to be what I think most reasonable Virginians would deem unsafe in many cases and utterly disgusting in others," said Family Foundation president Victoria Cobb.
David Peters, medical director for the facility, said that like discarded materials in other medical settings such as emergency rooms or eye doctors' offices, handling, properly storing and disposing of "products of conception" is part of the job for doctors in abortion clinics.
He said the incident noted in the health department report was regrettable but isolated.
"It's unpleasant," he said, "but the simple fact is that it's just the cost of practicing medicine."
Dr. Peters said that in his seven years at the clinic, they've never had a major complication, and that the release of the inspections and violations was simply a smokescreen. The nine facilities cited by the Family Foundation were inspected before being granted "unconditional licenses" by the Department of Health, according to the Virginia Coalition to Protect Women's Health, an advocacy group.
"I would have no problem being overseen by the government, as it were, if it made any sense," Dr. Peters said. "Wider hallways and bigger rooms would not have corrected a bag bursting in the freezer."
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