Tight enough?

New Virginia Board of Health regulations for abortion providers will probably be much like "outpatient" hospital rules, less stringent than the full regulation of general or special hospitals, according to informed sources familiar with the regulation-writing process. But the rules could be tightened via a mandated internal review by Gov. Bob McDonnell and Attorney General Ken Cuccinelli, who pushed regulation in the first place, before they are made public.

McDonnell signed Senate Bill 924, which mandates new regulations for abortion facilities, into law in March. With the Virginia Board of Health drafting new regulations, both pro-lifers and abortion supporters are watching anxiously to see how the result will affect abortion providers throughout the Commonwealth.

The Board of Health is required to classify abortion providers as a category of hospitals. Sources say that they are most likely to be classified as an "outpatient hospital," which has lighter regulatory standards than the other two categories ("general" and "special" hospital). But all three categories are more heavily regulated than abortion providers now, which are currently regulated as regular doctors' offices. The Board has considerable leeway in drafting the new regulations, however, so the finished product could end up as a completely new category for abortion clinics.

The process of drafting and adopting the regulations normally takes 18 months to two years. SB924 requires that the new regulations must be signed by the Governor by December 31, 2011, so the Board is using the Emergency Regulations protocol. This streamlined process cuts out the public comment time required by the usual procedure. Emergency Regulations can only stay in effect for 12 months, plus six more months if the Governor chooses to extend them; while the Board drafts more permanent regulations.

The Emergency Regulation protocol also allows for Gov. McDonnell, in conjunction with Attorney General Ken Cuccinelli, to review and revise the plan before it is adopted. The Governor and the Attorney General could potentially change any part of the regulations before they go into effect, giving McDonnell as much power over the final product as he chooses to exercise.

McDonnell spokesman J. Tucker Martin has stated that it is premature to discuss whether the governor would actually make changes to the regulations before the Board of Health has actually developed a draft. As The Washington Post reported in March, Martin says the governor's top priority in the matter is ensuring the "safety and welfare" of facility clients.

Another complicating factor: the Emergency Regulation protocol does not require a public comment period like the standard regulation protocol but the Board of Health will allow time for public comment at any public meetings in which it discusses the draft regulations. Ordinary meetings allow for a 20-minute comment period, and the Board may modify this as it sees fit. In addition, any drafts will be made available for public perusal at the time they are released to the Board, meaning people can see any drafts two weeks before the Board actually votes on them.

Abortion supporters worry that the new regulations could force them out of business. Regardless of the hospital categorization of clinics, the legislation stipulates that the new regulations must specify minimum standards for 1) construction and maintenance, 2) operation, staffing and equipment, 3) qualifications and training of staff, 4) conditions under which services may be provided to patients in their place of residence, and 5) policies related to infection prevention, disaster preparedness, and facility security. Compared to the much lighter standards for doctors' offices, the new regulations could certainly cause problems for existing clinics, abortion advocates say.

A spokesman for Planned Parenthood of Virginia, which operates seven of the Commonwealth's 21 clinics providing abortion services, says that only four of its clinics meet current outpatient hospital construction standards. It could cost up to $3 million each to bring their remaining two clinics that provide abortions (one location does not) into compliance with outpatient hospital code, which includes such specifications as minimum hallway width and ceiling height.

Pro-life advocates believe that the current standard of regulating abortion providers just like doctors' offices is far too lax. The Virginia Society for Human Life (VSHL), a statewide subsidiary of the national Right to Life organization, argues that abortion should be regulated according to the statutes for outpatient surgical centers because abortions are much more complicated than other procedures commonly performed in doctors' offices.

Both groups are likely to capitalize on the public comment opportunities in the regulation drafting process to lobby for their respective proposals. Planned Parenthood Advocates of Virginia have begun efforts to talk with individual Board members about the drafting process.

Virginia joins about 20 other states that have decided to regulate abortion providers like hospitals, and as Virginia's healthcare system is among the top in the nation it is likely that other states in the process of changing their own abortion oversight may look to Virginia's new regulations as a model to follow.

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