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More Than You Ever Wanted to Know About Fairfax City Ordinance Covering Women’s Health Clinics

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Last Wednesday, I did a blog post on the Fairfax City council’s last meeting, in which they voted 4-2 to pass a new zoning ordinance that covered, among other things, women’s health (including abortion) clinics. Since then, I’ve been reading commentary (and emails) by a variety of people, including Ben Tribbett (“The Fairfax City Disaster”), Catherine S. Read (“Inappropriate Zoning for Women’s Health Centers”), Kathy Lund Hackshaw, and Fairfax City council member Dan Drummond (“My Vote on Zoning Amendment”), etc. I also had a chance to chat for almost two hours with Dan Drummond this past weekend. I wish I could tell you that all of this has completely clarified the issue in my mind, but I’m not sure I’d go that far. One thing I would say is that this is an important, complicated issue that almost certainly needs further study and discussion before it proceeds any further. With that, here are some (super-wonky) bullet points regarding the information I’ve gathered over the past week. Enjoy(?)…if you’re a total policy wonk, that is.

*The women’s health clinic in question here, NOVA Health Clinic, was already closed due to a lawsuit (other tenants were reportedly complaining, supposed nonpayment of rent, etc.), issues related to TRAP, etc. as reported by Tom Jackman of the Washington Post this morning.

*The clinic had been looking to move to a location on Main Street in Fairfax City, but their application for a non-residential use permit was  “denied in May because officials decided parking at the building was not adequate.” (I also was told that NOVA Health Center withdrew its application, given that it was clear it wouldn’t be approved due to parking, etc.)

*There was clearly a great deal of opposition by people in the neighborhood to placing the clinic essentially across the street from them. To what extent you feel this opposition was justified – and obviously, most of us care what goes in right across the street from our homes – or that it was “NIMBYism” is an open question; my view is that there were elements of both.

*Apparently, it was after the permit denial that the issue came to the attention of the Fairfax City council, resulting in a process that led up to last Tuesday night’s 4-2 vote. Note that the vote occurred after numerous pro-choice activists, but no anti-abortion activists for whatever reason, spoke. I DO find it odd that no anti-abortion people spoke at that meeting, especially since I hear they were well aware of this and had spoken up previously; what’s up with that exactly? “Strategery?” Hmmm.

*Just for comparison, it’s interesting to note how Fairfax COUNTY defines “medical care facility”. It’s an extensive list, but also explicitly states that it shall “not include a physician’s office, first aid station for emergency medical or surgical treatment, medical laboratory…” Got that?

*One big question is to what extent the public should have input into zoning applications, and to what degree the process should be based on clear, objective criteria (e.g., parking) as opposed to subjective ones. My understanding is that Fairfax City was attempting to figure out a way to facilitate public input while maintaining objective criteria for making zoning decisions. The question is, did they succeed?

*Council member Dan Drummond pointed out on his Facebook page that one of the council’s goals was to “[clarify] language from a 30-year old zoning ordinance, [given that] the nature of these kinds of uses has evolved over time.” Drummond added, “I strongly believe City Council and the public needed to have a voice in such important matters as they relate to the City of Fairfax, a locality of 6.3 square miles and 23,000 people.”

*Drummond strongly argued on his Facebook posting that, although “[t]his issue has been cast as one about abortion,” in his view “it is not...[i]nstead it is about giving the community and its Council the opportunity to have another layer of review and input.” He also argued that “requiring [a Special Use Permit] is not out of the ordinary,” that “[w]e do it for dancing and entertainment licenses, drive through restaurants and in other circumstances.” Nor, Drummond adds, “is this ordinance out of keeping with what various other jurisdictions require, although there are variations in how every jurisdiction deals with zoning matters as these.”

*In stark contrast, I checked with a leading Virginia advocate of women’s health care and reproductive freedom, and she argued that “this ordinance was spurred by a very specific action (a women’s health clinic attempting to relocate within the city) and a fundamental misunderstanding of the care women’s health centers provide.” She further argued that “[t]his ordinance makes it MORE difficult for a clinic that provides first trimester abortion care to locate in the city by subjecting them to the same zoning requirements as hospitals, when we know clinics are much more similar to medical offices.” And, she concluded:

the ordinance doesn’t clarify or provide structure to the permitting procedure for clinics. Rather than establishing a clear set of criteria, or who they might apply to, the council instead determined that these special use permits (which cost ~ $4800 and can take up to six months to process) are subject to the judgement and approval of the council. I think the council proved last night they have very little grasp of how a women’s health center operates or the valuable services it provides to women in the community. Putting the subjective decision in their hands so its even MORE vulnerable to the political process instead of establishing a firm set of criteria and rules was incredibly ill advised.

*In her letter to the editor, Catherine S. Read says she was “shocked when the Fairfax City Council voted on Tuesday July 9th to require women’s health centers to undergo a new, arbitrary and expensive zoning permit process,” arguing that this was “a thinly veiled attempt to keep an abortion clinic from moving into a building on Main Street,” and that this will force women’s health centers “to jump through hoops to move into or relocate within the city, while the zoning laws relating to other doctors and dentists offices remain unchanged.”

*Council member Dan Drummond and Mayor Scott Silverthorne definitely don’t see it that way. In their view, from what I’ve gathered on “background,” they feel that they are most definitely NOT targeting one type of facility, but were trying to provide transparency and public input in a place where it wasn’t previously.

*One aspect of this I find fascinating, but also confusing, is how the new, onerous TRAP regulations targeting women’s health clinics in Virginia relate to what’s happening in Fairfax City. I’d say that at the minimum, the new TRAP regulations have been playing a major role in the NOVA Health clinic’s options of where it might move, what it can afford, how much parking it needs, what type of facility is required, etc. TRAP clearly limits all of those options, and of course makes it much more difficult – as clearly was the intention by anti-choice zealots like Ken Cuccinelli – for these clinics to operate at all. You certainly can’t blame the Fairfax City council for any of that, but the question is are they making it even MORE difficult for these clinics, at a time when the state has already been harassing them?

*Dan Drummond made a great point in our conversation, that the health care delivery system in this country today doesn’t align very well with our zoning ordinances. There are lots of gray zones, where it’s not clear exactly how to characterize a particular facility for zoning purposes.

*One argument I heard from supporters of the Fairfax City council vote was that Fairfax County, which is a pretty progressive county, has a process which is almost identical to the one Fairfax City just passed. If correct, that’s a strong argument, IMHO.

*Another issue is whether this women’s health facility needs to jump through the state TRAP regulation hurdles before it can even get to the local zoning process. That’s another layer of confusion, as far as I can determine.

*The question now is whether the Fairfax City council will vote to reconsider last week’s vote, defer a final vote for further study, more public input, etc. For whatever reason, Dan Drummond’s motion to defer was not seconded. Personally, I think that Catherine S. Read makes a fair suggestion, that “Mayor Scott Silverthorne and other members of the City Council [should] reconsider this ordinance at the next city council meeting on July 23rd.” The only problem is, I’m not sure that any amount of discussion will resolve this issue so that everyone is satisfied. Also, from talking to opponents of what the council did last week, I’m hearing significant amounts of distrust and skepticism that, in the end, this wasn’t about restricting abortion rights. The fact that Eric Cantor’s chief of staff had his fingerprints all over this certainly doesn’t inspire confidence, that’s for sure. It would be fascinating to see the email correspondence he (and others on the council, for that matter) was having with anti-abortion groups/individuals. Anyway, we’ll see what happens.

UPDATE: Sources close to Rep. Gerry Connolly tell me he is not at all pleased with the Fairfax City council’s vote last week.