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Virginia’s TRAP Law
In 2011, the Virginia House of Delegates voted to amend an unrelated health bill (SB 924, a bill that requires the Board of Health to issue regulations related to infection prevention and disaster preparedness for hospitals, nursing homes and certified nursing facilities) to include a provision that classifies "facilities in which 5 or more first trimester abortions per month are performed” as a category of hospitals. It passed in the Senate (with Lt. Governor Bolling acting as tie-breaker in a 20-20 vote split), and the governor signed it into law.
Senate Bill 924 subjects women's health centers to new regulations created by the Virginia Department of Health. The regulations are drafted by the Department of Health, voted on by the Virginia Board of Health, and also must receive approval from the governor as well as review by the attorney general during an executive review process. Senate Bill 924 imposed an "emergency” regulatory process to first create temporary new rules for women's health centers; a process which limited time for deliberation and public input. The governor approved temporary regulations that went in to effect on January 1, 2012.
During the temporary emergency regulatory process, the Board of Health chose to ignore sound science and failed to protect patient interests, including access to health care and patient confidentiality, by adopting medically inappropriate regulations.
With temporary regulations in effect, the Board of Health considered permanent regulations. These permanent regulations become final on June 19, 2013. When considering permanent regulations, on June 15, 2012, the Board voted to amend a key provision of the draft permanent regulations – the amendment meant that existing women’s health care centers that provide safe, legal first-trimester abortion care would be "grandfathered in,” rather than being subjected to onerous and unnecessary forced building requirements. However, the Attorney General placed politics over women's health and refused to certify those new rules. The Board voted again on September 14, 2012 and April 12, 2013, and under extreme pressure from the Attorney General and Governor McDonnell did not approve "grandfathering in" existing women's health centers.
Learn more about the permanent regulations. Read further to learn more about the next steps in the regulatory process.
First-trimester abortions remain one of the safest and most common of all in-office surgical procedures. Abortion should not be regulated differently than other outpatient procedures that do not trigger these kinds of strict regulations. Final permanent regulations should be based in medicine, not politics.
The Board of Health’s Regulation Process
Though unwarranted, SB 924 required that regulations be issued on an emergency basis, thus depriving the public of its full rights to weigh in on any proposed regulations and reducing the time for the Board of Health to consider comments by medical professionals, public health experts and the general public. On September 1, 2011 the Board received draft temporary regulations, leaving two weeks before a September 15 meeting during which the Board reviewed and voted on the draft temporary regulations. In the two-week period, written public comment was accepted. Oral public comment occurred at the September 15 meeting. After the Board voted to approve the temporary regulations, they went before the governor, attorney general, and the Budget Offices for executive review. After approval in each step of the executive review, the temporary regulations were implemented on January 1, 2012. The temporary regulations expired on December 31, 2012, but the Governor chose to extend that expiration date by six months.
Now the Department of Health crafted permanent regulations for women's health centers. Proposed permanent regulations were released to the public on June 1, 2012. The Board of Health voted to adopt the proposed permanent regulations on June 15, but amended the proposed rules to "grandfather in" existing women's health centers. On July 16, 2012, The Attorney General refused to certify the regulations as approved by the Board, inaccurately claiming that the Board does not have the authority to "grandfather in” existing facilities. The Governor asserted that without the Attorney General’s certification, the Board could not move forward with the regulatory process and forced the Board to reconsider during their September 14, 2012 Board meeting. On September 14, the Board did not "grandfather in" existing facilities, and agreed to subject existing women’s health care centers to building and construction requirements that only apply to new construction.
The Attorney General's refusal to certify the regulation of women’s health centers as amended by the Board on June 15 was intended to force the Board to rewrite the rules to suit the Attorney General’s policy objectives. While the Attorney General has the responsibility to review proposed regulations to determine if the Board has the authority to adopt them, the law does not give his Office veto power over the Board’s policy decisions about what to include in the final rules. Moreover, the AG is wrong on the law when he asserts the Board does not have the authority to "grandfather in” existing centers (read why).
Per the next step in the regulatory process (as currently applied by the McDonnell administration although of questionable compliance with the statutory requirements in the Administrative Process Act), the proposed rules went back through the Attorney General’s office and the Governor’s office prior to being published in the Virginia Register for 60 days of public comment. With the close of that public comment period on March 29, 2013, the Board of Health took a final vote on April 12 to approve the permanent regulations.[an error occurred while processing this directive]