Given the decisive ruling by the United States Supreme Court in Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), the undersigned Virginia Coalition to Protect Women’s Health (“Coalition”) calls on the Virginia Board of Health (“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 abortions. In the interim, we ask that the Board adopt changes to the current licensing regulations that would eliminate burdensome requirements imposed on providers that are not justified by credible medical evidence. At a minimum, the Coalition generally supports the amendments to the regulations advanced by the Board in September 2015. 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. In addition, we support Governor Terrence “Terry” McAuliffe’s additional recommended changes to the draft regulations as well as any further changes the Governor, Attorney General Mark Herring, or the Virginia Department of Health (“Department”) may recommend in response to the Supreme Court decision. Until the state law is changed or set aside as unconstitutional, the Board’s proposals and the Governor’s recommendations represent important first steps toward ensuring that the regulation of the Commonwealth’s abortion providers is grounded in medical evidence –including conclusive medical evidence that abortion is one of the safest medical procedures performed in the United States.

The targeted regulation of abortion providers (“TRAP”) is one of over seventy-five 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 Board currently possesses the critical opportunity to amend 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. Id. at __. 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 __. 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 the health and safety of women and ensure that they 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”), 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 repealing or 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 performed 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 performed in non-ASC medical offices throughout the country and in the Commonwealth. Requiring providers who perform 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 to discontinue performing 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 ban it outright by legislative fiat. This purpose is not only unconstitutional, it puts women’s lives and health at risk. The Board should adopt changes in the current licensing rules that will reflect to the greatest extent possible under current state law the medical reality that first-trimester abortion is one of the safest outpatient medical procedures performed in Virginia. Not only should the Board adopt the Governor’s recommendations, it should adopt any additional changes recommended by the Governor, attorney general, or Department as appropriate to reflect the Supreme Court’s decision in Hellerstedt. We call on the Board to become a leading advocate for any and all changes to the existing licensing rules and 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 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