How did we get here? Our five-year fight to “Scrap TRAP” and protect abortion access in Virginia

On February 24, 2011, the General Assembly passed a sneak attack on abortion providers by attaching a last-minute targeted regulation of abortion providers (TRAP) amendment to a nursing home regulation bill. With it, they began one of the most critical battles for abortion access in our state in decades. At multiple points over the past five years, it looked as if Virginia was certain to lose the majority of its health centers that provide first-trimester abortion, due to medically-unnecessary targeted restrictions designed only to shut them down – and in fact, multiple providers have closed in anticipation of the burdens they would face to stay open.

But now, with the Virginia Board of Health’s meeting on Thursday, September 15, 2016, we could finally reach a point where Virginia’s abortion providers can know they will be able to continuing providing quality care to thousands of women across the Commonwealth.

So how did we get here? Let’s go back to the beginning and take a journey through our five-year fight to “Scrap TRAP”…

  • March 2011:  Governor Bob McDonnell signs SB 924, a bill concerning the regulation of hospitals, nursing homes, and certified nursing facilities that was amended at the last minute to include language stating “facilities in which 5 or more first trimester abortions per month are performed shall be classified as a category of “hospital.”  This law triggers a two-year Virginia Department of Health rule-making process to create new regulations on outpatient abortion providers. NARAL Pro-Choice Virginia denounces this sneak attack and begins organizing with other women’s health advocates to take action during the TRAP regulatory process.

A politicized process aimed at shutting down providers (2011-2013)

  • September-December 2011: Governor McDonnell’s administration creates draft TRAP regulations, which NARAL Pro-Choice Virginia and other women’s health advocates immediately point out as part of an anti-choice agenda to shut down as many providers as possible. The draft regulations ignore medical evidence and best practices around first-trimester abortion care. Instead, they include inappropriate structural requirements that are meant for new hospital construction, as well as other burdensome and unnecessary restrictions. Under pressure from Attorney General Ken Cuccinelli’s office, the state Board of Health votes to advance these draft regulations and Governor McDonnell approves them.
  • June–September 2012: As they consider the permanent regulations, the Board of Health initially approves an amendment to “grandfather-in” existing abortion providers from having to rebuild their facilities to meet construction guidelines intended for new hospitals. Attorney General Ken Cuccinelli, however, refuses to certify the regulations as long as they include “grandfathering.” After Cuccinelli sends Board members a memo threatening to withhold legal representation from them in the event of a lawsuit about the regulations, the Board reverses itself and moves forward with imposing the hospital-style construction restrictions even on existing facilities. Attorney General Cuccinelli certifies his own personally-packaged regulations.
  • October 2012: Virginia Commissioner of Health Karen Remley resigns from her position. She cites the pressure from Governor McDonnell and Attorney General Cuccinelli to ignore medical evidence and pursue an anti-abortion agenda through the regulatory process, saying that “[M]y ability to fulfill my duties is compromised and I can no longer in good faith continue in my role. “
  • April–July 2013: The initial regulatory process ends when the Board of Health votes to approve permanent regulations on first-trimester abortion providers and the Governor approves them. Providers now have a year to come into compliance with the restrictions or close. Two women’s health centers – Hillcrest Clinic in Norfolk and NOVA Women’s Health Care in Fairfax City – close shortly after because of the difficulty they would face in reconstructing or relocating their facilities to meet the regulations.

By manipulating and strong-arming the process at ever turn, anti-choice Gov. Bob McDonnell and A.G. Ken Cuccinelli never gave abortion providers a chance, despite the medical experts and thousands of pro-choice Virginians who spoke out during the initial regulatory process. And if Ken Cuccinelli had been elected Governor in 2013, these extreme clinic-shutdown regulations may still be in effect today.

But instead, tens of thousands of pro-choice Virginians made their voices heard at the ballot box on Election Day in 2013, which gave us…

A new chance to regulate clinics based on medicine, not an anti-choice agenda (2014-present)

  • May 2014: A few months after taking office, new Governor Terry McAuliffe instructs the Department of Health to initiate what’s known as a “periodic review” of the regulations on first-trimester abortion providers, re-opening the regulations to amendments and updates. Abortion providers are able to stay open after receiving one-year waivers from the Department of Health.
  • June–September 2014: NARAL Pro-Choice Virginia and our coalition partners call on the Board of Health to overhaul the regulations. We deliver over 4,800 public comments to the Health Commissioner Dr. Marissa Levine, and our coalition calls for her to move forward with review and amendment.
  • October–December 2014: Health Commissioner Levine sends a letter to Governor McAuliffe indicating her decision that the regulations should be reviewed and amended, and the Board of Health agrees.
  • April 2015: Panels of physicians and other health care experts met to recommend amendments to the Department of Health.
  • September 2015: After a public comment period and hearing the testimony of doctors, medical professionals, and legal experts, the Board of Health introduces and approves critical amendments to the proposed new regulations that NARAL Pro-Choice Virginia and our coalition partners applaud for removing medically-irrelevant requirements designed only to shut clinics down.
  • June 2016: The Supreme Court decision in Whole Woman’s Health v. Hellerstedt strikes down the state of Texas’ medically-irrelevant restrictions on abortion providers as unconstitutional. The ruling calls into question the constitutionality of Virginia’s own TRAP law and the resulting regulations that single out abortion providers without medical evidence in an attempt to shut them down.
  • July 2016: The public comment period on the Board of Health’s proposed new regulations ends.

Which brings us to now…

On Thursday, September 15, the Board of Health will review public comments, hear testimony from members of the public, and have the chance to vote on the adoption of new permanent regulations that do not include many of the most burdensome, medically-irrelevant restrictions such as hospital-style construction. The Board will also determine whether proposed amendments to Virginia’s abortion provider restrictions sufficiently address the undue burden standard specified in Whole Woman’s Health v. Hellderstedt, or if additional changes are necessary to ensure the regulations are constitutional.

NARAL Pro-Choice Virginia has strongly called for the board to vote to adopt these amendments and protect safe, legal abortion access in Virginia. If they do adopt the amendments, the new permanent regulations will move to an executive branch authorization and a final 30-day public comment period before becoming final and going into effect.

Tune in on September 15!

NARAL Pro-Choice Virginia activists, women’s health experts, medical professionals will be there at the Board of Health meeting speaking on behalf of our thousands of members and pro-choice people across the Commonwealth. You can follow us on social media all day (Twitter, Facebook), follow the hashtag #ScrapTRAP, and follow our partner ProgressVA’s livestreamed video feed here.

2 Comments Add yours

  1. Nancy Finch says:

    Thank you for all your work and for the very well prepared information contained here about the entire saga.

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