An activist working with Oppose TRAP has submitted a petition calling into question the legality of the current regulations of most Virginia hospitals. Taking Attorney General Ken Cuccinelli at his word, the petition points out the unintended consequences of his position on grandfathering for women’s health centers that provide abortion care, which under 2011 legislation are now defined as hospitals.
In 2011 the Virginia General Assembly passed SB924, defining health care facilities that perform first-trimester abortions as hospitals, requiring they be regulated by the Board of Health. Despite a panel of medical experts’ recommendation to grandfather in existing facilities2, the regulations as written by Attorney General Ken Cuccinelli’s office required clinics to undergo extremely costly structural upgrades to parking spaces, hallways widths, awnings, etc. These medically unnecessary requirements come from three chapters of a manual called the 2010 Guidelines for Design and Construction of Health Care Facilities, and are unrelated to women’s health and safety.
These regulations were expected to permanently close the doors of at least 75% of the abortion clinics in the state.1 After public protest and outspoken opposition from the medical community made clear the dire consequences of Ken Cuccinelli’s position, the Board passed an amendment that would exempt existing clinics from having to meet the new building codes.
In response, Cuccinelli opined that the Board of Health did not have the authority to grandfather existing clinics. He threatened to withhold future legal counsel from the Board, directing it to pass the regulations as originally written.
The Board of Health capitulated, effectively sentencing the closure of most abortion clinics in the state.
The facility guidelines for hospital construction clearly state they are “intended as minimum standards for designing and constructing new health care facility projects.” When it was pointed out that these are not new facilities, and in some cases have been in safe operation for decades, the Attorney General's Office declared that they were new hospitals because the 2011 legislation newly defined them as hospitals.
Since that time, reproductive rights activist Molly Taylor Vick researched the legislation which originally defined general hospitals in 1947, just as SB924 defined abortion clinics as hospitals in 2011. After further investigation she discovered the first Rules and Regulations Governing Licensure of General Hospitals in an unprocessed box of files at an off-site archive of the Library of Virginia; these regulations did grandfather in existing hospitals without requiring them to meet the same standards as newly constructed facilities.
Now, with clinics already closing3 and only a year remaining until some must come into compliance, Molly Taylor Vick has filed a petition that challenges Ken Cuccinelli to defend the legality of his position. This may provoke concern in some reproductive rights advocates, who could feel uncomfortable being associated with a legal process that has the potential to shut down health care facilities. They cannot afford to alienate their allies in the medical community.
Oppose TRAP appreciates these concerns. “Access to health care is something we all value very highly, but this is really about whether people believe in equal application of the law. One argument of pro-choice activists has been that abortion clinics cannot be regulated differently than other facilities; that the law must be applied equally. That is exactly what we’re saying. We are merely pointing out the implications of a decision made by Cuccinelli.” Oppose TRAP continues to explain that after due diligence, they also feel confident that the economic, political and social consequences are so severe that there is not a real threat to general hospitals. “That is the whole point. It is absurd. Cuccinelli needs to explain how it isn’t or own up to what he has done.”
Molly Taylor Vick notes that participation in the public comment period does not equal support for the petition. “People are encouraged to use their voices to express their individual concerns, whether they are in support of or strong opposition to the petitions.”
She further contends that this is taking the fight to where Ken Cuccinelli pretends it is – in the legal interpretation and application of law. “He must own this.”
Cuccinelli can not selectively apply the law:
If existing hospitals CANNOT be grandfathered in under new regulations, this brings into question the legal status of every facility built prior to 2005, many of which will now be forced to undergo the same costly architectural renovations as abortion clinics. This could result in hospitals across the state closing their doors.
If existing hospitals CAN be legally grandfathered as they always have been, then they CAN be legally grandfathered today, and Cuccinelli overstepped his legal and professional authority by refusing to certify those approved regulations. He also overstepped ethical boundaries by threatening to withhold representation if the Board of Health was sued.
VDH must either act to amend hospital regulations to require current construction code of existing facilities or readdress the issue of grandfathering as applied to abortion clinic facilities.