06/14/2012 02:12 pm ET

Virginia Abortion Clinic Rules Draw Accusations Of Government Overreach

The Virginia Board of Health is set to vote Friday on proposed regulations that would force all first-trimester abortion providers in the state to meet building standards similar to those for hospitals.

Women's health advocates have protested that the new rules would require such costly and extensive renovations that some or all abortion clinics in the state could be forced to shut down, and they claim that the political process that resulted in the rules was fraught with political corruption and misuse of power.

The Republican-controlled House of Delegates took the first official step toward regulating clinics in early 2011 by passing a bill that changed the classification of women's health care centers that provide at least five first-trimester abortions a month from "outpatient offices" to "hospitals." Virginia Gov. Bob McDonnell (R) signed the legislation and gave the Virginia Board of Health 280 days to implement a set of "emergency" rules.

The Health Department appointed an expert panel of six doctors to collaborate on the regulations for the health centers, among them Dr. James Ferguson, chairman of the Department of Obstetrics and Gynecology at the University of Virginia. Ferguson says the rules suggested, approved and sent by that panel to state Attorney General Ken Cuccinelli's office for review are quite different from those that were presented to the Board of Health.

"We developed a product based on our expert opinions, in terms of what should be included and also based on a review of other guidelines and regulations of different groups, such as the American Congress of Obstetricians and Gynecologists -- folks that are pretty knowledgeable and well established in that area of care," Ferguson told The Huffington Post. "We developed a product, it then went away, but when it was returned to us, it was, I think, in very important ways different than what we had submitted and recommended."

Ferguson said the regulations he approved were "just plain good medicine, in terms of follow-ups for patients, establishing gestational ages and ensuring patients get appropriate care." But he said the set of regulations that came back to him from Cuccinelli's office were "much more restrictive" and included "a variety of different requirements that were unneeded for clinics providing first-trimester abortions," including a set of building requirements that were intended to apply to hospitals and surgical centers built in 2010.

The temporary regulations approved by the Board of Health in Fall 2011, which it could make permanent on Friday, include physical requirements such as five-foot wide public hallways, new ventilation systems, covered front entrances and drinking fountains in waiting rooms. Currently, none of the 20 health centers that are applying for a license under the new regulations meet the building requirements, according to Tarina Keene, the executive director of NARAL Pro-Choice Virginia.

Proponents of the regulations, including McDonnell, say they are being put in place to protect women's safety.

"The governor believes these common-sense regulations will help ensure that this procedure takes place in facilities that are modern, safe and well-regulated, in order to help ensure the safety and well-being of all patients," said Taylor Thorney, a spokesperson for McDonnell, in an email to The Huffington Post.

Ferguson and other women's health advocates argue that the regulations are a solution in search of a problem.

"That was the fundamental problem and overreach in all of this," Ferguson said. "Before I agreed to participate, I asked the question, 'Are we having a problem in Virginia? Is there a reason for these new regulations?' And I was told [by Karen Remley, the Virginia Health Commissioner], 'No, we aren't aware of any problems.'"

Remley's office declined to confirm or deny Ferguson's account of the interaction.

The power players involved -- McDonnell, Cuccinelli and Deputy Health and Human Resources Secretary Matt Cobb -- are all staunchly anti-abortion, with strong ties to the Family Foundation, one of the most active and powerful anti-abortion advocacy groups in the state. Cobb is married to Victoria Cobb, the president of the Family Foundation, who has been an outspoken lobbyist in the push to regulate abortion clinics for the past several years.

The Cobbs did not respond to calls for comment.

McDonnell, Cuccinelli, Lt. Gov. Bill Bolling (R) and state House Speaker Bill Howell (R) all spoke at a Family Foundation Advisory Council legislative briefing in February 2010, and Cuccinelli has since been very open about his goal to "make abortion disappear in America."

Cuccinelli asserted in 2010 that the state Board of Health should have the power to circumvent the Virginia General Assembly to impose tougher regulations on abortion clinics.

The more disturbing aspect of the political process, according to Keene of NARAL Pro-Choice Virginia, is the heavy influence Cuccinelli seemed to have in the development of the regulations and on the Board of Health's decision to pass them.

"He is definitely an activist attorney general," she told The Huffington Post. "He essentially claimed veto power over the board's decisions, manipulated the process and misled the board of health members on what their role was and what the law actually required of them to do. We were just dumbfounded by what happened during that meeting -- a blatant hijacking of regulatory process."

Cuccinelli's office did not respond to requests for comment.

McDonnell's spokesperson said the regulations have plenty of opportunity for public comment and were broadly supported by lawmakers and government officials in Virginia.

"The regulations were posted publicly shortly after their approval, following the same process that all proposed changes to regulations undergo in Virginia," she said. "Additionally, the regulations are still in the proposed phase, and there will be yet another opportunity for public comment prior to the final regulatory stage. These regulations are a product of legislation that passed both the House and Senate with bipartisan support."

If the Board of Health passes the permanent rules on Friday, the public will have 60 days to comment on them before they go to McDonnell's desk for approval. Upon final approval, health centers that provide abortions will have two years to come into compliance with the new building standards if they want to stay licensed in Virginia.

In the meantime, while the board considers the new permanent regulations, the clinics are already scrambling to meet the temporary ones.

"To show you just how lengthy and convoluted these regulations are, we put together a checklist 12 pages long to help clinics comply," Keene said. "Nine or 10 have been inspected so far, but none have heard. We're in limbo."