July 10, 2019

To the Virginia Board of Health:

I write in response to the Board’s Notice of Intended Regulatory Action 5098, “Regulations for the Licensure of Abortion Facilities,” which concerns earlier amendments to the Virginia Administrative Code, 12 Va. Admin. Code 5-412. In particular, I write to comment on the constitutionality of recently-revived portions of the Virginia Administrative Code that constitute targeted, politicized restrictions on abortion providers, saddling reproductive health clinics with onerous administrative and practice requirements, often referred to as TRAP (Targeted Regulation of Abortion Providers) laws.

Under the United States Constitution, abortion regulations are invalid if they have the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion, imposing an “undue burden” on her constitutional rights.[1] In Whole Women’s Health v. Hellerstedt, the Supreme Court struck down Texas’s TRAP regulations as an unconstitutional undue burden on Texas women.[2] Under Hellerstedt, Virginia’s TRAP regulations are likewise legally invalid as a constitutional matter, as well as unnecessary and potentially-harmful to Virginia women as a practical one.

The underlying facts of the Hellerstedt case are instructive. In that case, the Texas legislature enacted TRAP laws mandating that abortion facilities comply with state requirements for ambulatory surgical centers,[3] including costly design and construction requirements similar to those promulgated in Virginia. There, as here, proponents claimed the regulations would advance women’s health. Yet in Hellerstedt, the Supreme Court had little difficulty concluding that the requirements provided few, if any, health benefits and were in fact unnecessary.[4] Instead, the Court determined that far from supporting women’s health, the likely effect of the surgical-center requirements would be to place substantial obstacles in the paths of women seeking abortion.[5]

In Hellerstedt, the Court assessed a number of factors in concluding Texas’s surgical-center requirements created an undue burden, including: the likelihood they would result in clinic closings; the likelihood they would delay or deter patients from obtaining abortions; and the potential for them to increase costs.[6] The costs associated with bringing facilities into compliance with surgical-center requirements raise the very real danger of shuttering reproductive health centers. In Texas, evidence established that final implementation of the regulations would have increased costs and significantly reduced the number of clinics remaining in operation, making it difficult, if not impossible, for some women to procure abortions.[7] Given these realities, the Court agreed the effect of these requirements would be harmful to, rather than supportive of, women’s health. Ultimately, because the Texas requirements provided few, if any, health benefits but created a substantial obstacle for women, the Court concluded they imposed an undue burden on women’s constitutional rights and should be struck down.[8]

The Virginia TRAP regulations are constitutionally invalid for the same reasons. Here, as in Texas, there has been no credible evidence establishing that these restrictions would actually promote women’s health. Here, as in Texas, it is more likely that they could harm women’s health. The regulations raise the same concerns about closings, delays, and costs that led the Court in Hellerstedt to conclude the surgical-center requirements imposed an unconstitutional, undue burden on Texas women. Indeed, prior to 2016, several reproductive health centers were closed in the wake of Virginia’s TRAP laws.[9]

Clinic closures mean that fewer women in the Commonwealth have access to the affordable, comprehensive reproductive health services they rely on to plan their families and avoid unintended pregnancies. Between 2008-2011, the abortion rate in the United States dropped by a dramatic 13%.[10] Research did not uncover evidence that this decline was related to a decrease in abortion providers or enhanced regulation of them.[11] Instead, research suggests that this documented decline in abortion is linked to a drop in unintended pregnancies, likely driven by improved contraceptive use.[12] Closing the very reproductive health centers that provide contraception and family planning services, thus assisting women in avoiding unintended pregnancies in the first place, would be especially counterproductive.

The implications of the Hellerstedt decision for Virginia’s TRAP regulations are clear. There is a lack of evidence that these restrictions would confer any medical benefit sufficient to justify the burdens they impose. As such, they are presumptively unconstitutional. The Board should not hesitate to reinstate changes implemented in 2017 and to make other amendments to the Administrative Code to ensure that Virginia women have safe, confidential access to abortion services. Doing so will better protect the health of Virginia women, and help ensure the availability of accessible, high-quality reproductive healthcare services to women and families in the Commonwealth.

Respectfully submitted,

Meredith Johnson Harbach

Professor of Law

University of Richmond School of Law