- The Washington Times - Friday, September 14, 2012

RICHMOND — The Virginia Board of Health on Friday voted to adopt new regulations for the state’s abortion clinics, reversing a decision in June that would have exempted existing facilities from rules that opponents claim could force a majority of the 20 clinics to close.

Following passionate public testimony from those on both sides of the debate, the board approved the new regulations by a 13-2 vote. Some opponents of the rules chanted “Shame! Shame! Shame!” and hurled obscenities after the vote. They were subsequently escorted from the room by security.

“We understand that,” board Chairman Bruce Edwards said. “It is a very emotionally-charged issue, and I think sometimes maybe they just get real passionate about it, and this is similar to what we saw at previous meetings, and this is just their way of releasing that frustration, perhaps.”

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 such as hallway width and operating-room sizes. The move shocked many conservative advocates of the new regulations, since temporary rules already in place had been passed in September that did not exempt the state’s existing facilities.

The board on Friday rejected several amendments that would have either grandfathered existing clinics into compliance under the new rules or provided them more leeway, also on 13-2 votes.

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 the legislation passed by the General Assembly last year that directed the board to promulgate the regulations in the first place.

“We were completely intimidated by the attorney general a year ago,” said James H. Edmondson Jr., one of the two “nay” votes, referring to the board’s vote last September to adopt the temporary regulations. “Then, things seemed to change. People were taking a broader perspective. We are a regulatory body; we are not just a mouthpiece for the attorney general.”

“It changed again,” he continued. “People changed their minds and they were convinced by the arguments put forward by the attorney general about the appropriateness of the action taken by the legislature. The legislature has sent us conflicting messages, and, to me, that’s going to have to be resolved in the courts, by the legislature itself — I have no idea what to expect over the next year or so.”

For now, the regulations go back to the office of Attorney General Kenneth T. Cuccinnelli II for review and, if approved, to the desk of Gov. Bob McDonnell, a Republican. There would then be a 60-day public comment period before the board would have another opportunity to look at them in light of those comments.

“Whatever the decision, it will be determined solely on a legal basis — as was the decision on the prior version of the regulations - not on the basis of whether or not we agree with the policy,” Cuccinelli spokesman Brian Gottstein said.

A memo sent to board members this week and obtained by the Virginian-Pilot said that if board members are named in a lawsuit related to board actions taken Mr. Cuccinelli’s office doesn’t necessarily have to represent them and can also decline the appointment of special counsel. Mr. Gottstein stressed, though, that when the law leaves him discretion, Mr. Cuccinelli’s personal position is to provide representation.

“Maybe that worried some folks. I don’t know,” Mr. Edmondson said. “We’re a completely apolitical body. And suddenly we’re thrown into a completely political situation. And I don’t think we coped very well. I know I didn’t cope very well.”

But even in the apparently unlikely event that Mr. Cuccinelli’s office declined to provide representation, the state could end up paying for board members’ counsel anyway, said Tara Casey, director of pro bono services at the University of Richmond School of Law.

If the attorney general’s office deems that its office cannot represent the agency for an appropriate reason, “then the statute has a provision where outside counsel can be retained and the attorney’s fee is then sent to the Commonwealth and paid out of the risk management fund,” Ms. Casey said.

Regardless, Mr. Edwards attributed the change in votes to the fact that board members had more time to go back and study the issue — not because of any perceptions of pressure from the attorney general’s office.
“We tend to not think that way,” Mr. Edwards said. “We work through all of these issues in a systematic way, a methodical way, and come out with what we feel is the best for these patients.”

Dr. M. Catherine Slusher, who voted for the exemption in June, admitted to being a little confused at that meeting and said if she had it to do over again she would have acted differently.

“It’s not a matter of our personal preferences,” she said. “By adding construction [restraints], we are not harming their conditions. … I totally disagree that we are limiting access to service.”

Paul Clements, who also switched his vote, dismissed the notion that it had anything to do with outside pressure.

“At no time during this process did I ever feel like I was being pushed by anybody,” he said.

All 20 of the state’s clinics have applied for licensing and 12 have been granted licenses after submitting plans to correct deficiencies ranging from a corridors or doorways being too narrow or having inadequate hand-wash and service sinks, Ms. Remley said. None have indicated an intention to close.

Advocates have consistently argued that the new design regulations would be prohibitively expensive and could force the clinics to close.

But Chris Freund with the Family Foundation, which supports the regulations, called that argument a “false choice.”

“They can stay open — they just can’t perform abortions,” he said, citing Planned Parenthood’s claim that only 3 percent of their patient care deals with abortion services.

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