I write to express my support for the public comments submitted by the Virginia Coalition to Protect Women’s Health. Abortion providers in Virginia are already subjected to a plethora of regulations and standards, like any other medical provider. These regulations help ensure that patients are afforded access to safe, high quality reproductive healthcare in the Commonwealth. Consequently, there is no need for additional regulations targeted at abortion providers.

As the Virginia Board of Health conducts its current review of 12 Va. Admin. Code 5-412, I encourage the body to ensure that these regulations are based on the best available medical evidence and tailored to patient and provider safety.

In particular, I urge the Board to eliminate 12 Va. Admin. Code 5-412-230, which prohibits licensed abortion facilities from providing second-trimester abortion care. This prohibition is medically unjustified and harms Virginia patients by severely restricting their access to this critical care. As the Board recently argued in court and as a district court recently found, licensed abortion facilities are a category of “hospital” under Virginia law, and therefore meet the statutory requirement that second-trimester abortions take place in a hospital setting, see Va. Code Ann. § 18.2-73; Mem. Op. (Cross-Mots. for Summ. J.), Falls Church Med. Ctr., LLC v. Oliver, No. 3:18-cv-428-HEH (E.D. Va. May 6, 2019). The Board also recently conceded in litigation that the restriction contained in 12 Va. Admin. Code 5-412-230 violates the United States Constitution. Defs.’ Reply at 4–5, Falls Church Med. Ctr., No. 3:18-cv-428-HEH (E.D. Va. Apr. 1, 2019). It is past time for the Board to eliminate this unconstitutional and medically harmful prohibition.

Medically, second-trimester abortion care is far safer than the alternative (pregnancy to term, labor and delivery)—and Virginia law allows labor and delivery to be managed outside any medical setting, in a patient’s home. Moreover, outside of Virginia, second-trimester abortions are routinely and generally performed in non-hospital outpatient settings like physician’s offices or clinics. This practice is safe and medically appropriate. Second-trimester abortion does not differ from first-trimester abortion in any way that requires a specialized facility. It involves mild oral sedation and moderate IV sedation, which are also already used for first-trimester abortions performed in licensed abortion facilities in Virginia. Second-trimester abortion often involves the same method as that used in the first trimester: aspiration, in which a thin, flexible tube is inserted through the natural openings of the vagina and cervix and gentle suction is applied through the tube to empty the uterus. Neither this method nor the other common second-trimester method, dilation and evacuation (which involves the use of instruments to empty the uterus), requires any surgical incision or a sterile operating field. Both are extremely safe, with extremely low complication rates. For both methods, complications typically can be managed in an outpatient setting and, in the exceedingly rare circumstances where a patient might need a higher level of care, the patient remains stable and can safely be transferred to a hospital, just as they would be for complications occurring from other outpatient procedures.

Not only is 12 Va. Admin. Code 5-412-230 medically unnecessary, but it in fact increases patient risk by severely delaying patients in obtaining a procedure that is safer the earlier in a pregnancy it is performed. Most of our patients have very restricted incomes and are already parents. Many work low-wage jobs where they have limited time off and no paid time off. They often have very limited access to childcare and transportation. Many are struggling to keep their decision confidential, out of reasonable fears that a partner or other family members would prevent them from accessing abortion care. On top of these obstacles, 12 Va. Admin. Code 5-412-230 imposes a massive additional hurdle by prohibiting abortion facilities from providing second trimester care unless they obtain alternative licensure as an outpatient surgical hospital. Because of this prohibition, there are currently only two facilities in Virginia that meet the regulatory requirements for providing second-trimester abortion and routinely offer patients appointments for abortion in the second trimester: an outpatient surgical center in Virginia Beach and a hospital in Richmond.

Moreover, space in these facilities is limited, which forces many patients to wait for several weeks for an appointment. Many patients also have to travel long distances to reach these locations, and in Richmond they also must pull together resources they often don’t have to pay the far higher medical costs associated with in-hospital care. These factors delay women for multiple weeks and impose on them medical risk, emotional harm, financial strain, and loss of confidentiality—with no offsetting medical benefit. For the significant percentage of patients suffering intimate partner violence, these delays and obstacles endanger them and make it more likely that they will be forced by their partner to carry an unwanted pregnancy to term. For patients living in severe poverty, we fear these obstacles often force them to carry unwanted pregnancies to term as well.

This regulatory prohibition is not only unjustified and unconstitutional but, frankly, unconscionable. It should be immediately eliminated. I also endorse the recommendations proposed by the Virginia Coalition to Protect Women’s Health, and I urge the Board of Health to adopt them.

Thank you for your consideration.

Respectfully,

Paulette McElwain
President and CEO, Virginia League of Planned Parenthood