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Virginia's Targeted Regulations of Abortion Providers Washington and Lee Law Review Volume 71 | Issue 2 Article 18 Spring 3-1-2014 Virginia's Targeted Regulations of Abortion Providers: The Attempt to Regulation Abortion out of Existence Katharine Greenier American Civil Liberties Union of Virginia Rebecca Glenberg American Civil Liberties Union of Virginia Follow this and additional works at: http://scholarlycommons.law.wlu.edu/wlulr Part of the Constitutional Law Commons, Legislation Commons, and the Women Commons Recommended Citation Katharine Greenier and Rebecca Glenberg, Virginia's Targeted Regulations of Abortion Providers: The Attempt to Regulation Abortion out of Existence, 71 Wash. & Lee L. Rev. 1233 (2014), http://scholarlycommons.law.wlu.edu/wlulr/vol71/iss2/18 This Session 3 is brought to you for free and open access by the Law School Journals at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Virginia’s Targeted Regulations of Abortion Providers: The Attempt to Regulate Abortion out of Existence Katharine Greenier∗ Rebecca Glenberg∗∗ Table of Contents I. Introduction ................................................................... 1234 II. The Emergence of TRAP in Virginia ............................. 1238 A. At the General Assembly ........................................ 1238 B. Administrative Process ........................................... 1240 III. Legal Flaws in the Adoption of TRAP ........................... 1242 A. Statutory and Regulatory Background ................... 1243 B. Virginia’s Administrative Process Act .................... 1244 C. Adoption of the TRAP Regulations ......................... 1245 D. Additional Legal Defects ......................................... 1248 IV. TRAP Undermines the Constitutional Right to Abortion ..................................................................... 1249 V. The New Regulations for Women’s Health Care Centers in Virginia Are Unnecessary and Unrelated to Health and Safety ............................. 1252 VI. The Effect of TRAP in Virginia, Including TRAP’s Impact on Access to Abortion for Low-Income Women ................................................. 1256 VII. Where Do We Go from Here? ........................................ 1259 VIII. Conclusion ...................................................................... 1261 ∗ Reproductive Freedom Project Director of the American Civil Liberties Union of Virginia. ∗∗ Legal Director of the American Civil Liberties Union of Virginia. 1233 1234 71 WASH. & LEE L. REV. 1233 (2014) I. Introduction After forty years of providing safe, trusted reproductive health care, Hillcrest Clinic in Norfolk, Virginia, closed April 20, 2013.1 The clinic, which opened in October 1973, just nine months after the Supreme Court decided Roe v. Wade,2 was the first ever medical facility in South Hampton Roads to provide legal abortions.3 A bomber, an arsonist, and an antichoice extremist firing two dozen bullets into the clinic could not close Hillcrest’s doors.4 What did? Burdensome, discriminatory government regulations that imposed requirements unrelated to patient safety only on doctor’s offices and clinics providing first-trimester abortions.5 The clinic’s director, Suzette Caton, said that it would have cost the clinic $500,000 to install the new physical plant requirements, including new ventilation and temperature controls,6 required by the rules, none of 1. Hillcrest Clinic, NAT’L ABORTION FED’N, http://www.thehillcrest clinic.com (last visited Jan. 22, 2014) (on file with the Washington and Lee Law Review). 2. 410 U.S. 11 (1973). 3. Amy Jeter, Norfolk Abortion Clinic Plans to Close Doors, VIRGINIAN PILOT (Apr. 19, 2013), http://hamptonroads.com/2013/04/norfolk-abortion-clinic- plans-close-doors (last visited Jan 22, 2014) (on file with the Washington and Lee Law Review); see also Lori Adelman, New TRAP Laws Force Virginia Abortion Clinic to Close After 40 Years of Service, FEMINISTING (Apr. 22, 2013), http://feministing.com/2013/04/22/new-trap-laws-force-virginia-abortion-clinic- to-close-after-40-years-of-service/ (last visited Jan. 22, 2014) (arguing that TRAP laws were designed not to make abortions safer but rather to limit access to abortions in Virginia) (on file with the Washington and Lee Law Review). 4. See Jeter, supra note 3 In 1983, a man broke in, poured kerosene throughout the office and set it ablaze. A year later, a cluster of pipe bombs exploded nearby, breaking a plate glass window of the bank branch on the first floor. In December 1994, Hillcrest made national news when John C. Salvi III opened fire on its building with a semi-automatic rifle a day after he’d killed two people and injured five at two clinics outside Boston. 5. See 12 VA. ADMIN. CODE §§ 5-412-10 to -370 (2013) (providing comprehensive regulation of first-trimester abortion facilities). The regulations discussed in this article impose restrictions on facilities performing abortions in the first trimester of pregnancy, the simplest and safest time to perform a surgical abortion. See id. § 5-412-10 (defining “abortion facility” as any facility in which five or more first trimester abortions are performed per month). Virginia law already requires second and third trimester abortions to be performed in a hospital. VA. CODE ANN. §§ 18.2-73, -74 (West 2009). 6. See Jeter, supra note 3 (noting that the Hillcrest Clinic closed its doors rather than comply with the costly regulations). VIRGINIA’S TARGETED REGULATIONS 1235 which were required to provide good medical care.7 The onerous and unnecessary regulations Caton cited are called Targeted Regulations of Abortion Providers (TRAP).8 Antichoice movement leaders unable to ban abortion using lawsuits, intimidation, or, in some cases, violence have now turned to a strategy of seeking to regulate abortion providers out of existence, achieving indirectly what they couldn’t accomplish directly, particularly with respect to first-trimester abortions, which enjoy the greatest protection under Roe v. Wade.9 TRAP laws are one of the regulatory initiatives the purpose of which is to eliminate all access to legal abortions by making it physically or economically impossible for doctors and clinics to provide these services.10 TRAP laws require women’s health centers that provide first- trimester abortions to follow more stringent regulations than other similar outpatient medical facilities.11 One common TRAP law 7. See Norfolk Abortion Clinic Closing After 40 Years; Cites New State Regulations, RICHMOND TIMES-DISPATCH (Apr. 19, 2013, 12:39 PM), http://www.timesdispatch.com/news/state-regional/norfolk-abortion-clinic-clos ing-after-years-cites-new-state-regulations/article_a9c09b58-a90f-11e2-af4c- 0019bb30f31a.html (last updated Apr. 20, 2013, 10:31 AM) (last visited Jan. 22, 2014) (noting that the Hillcrest Clinic is the only abortion clinic in Virginia that is not attempting to renew its license) (on file with the Washington and Lee Law Review). The Times-Dispatch also notes these important factors in the clinic’s decision to close: “Caton also says costs of supplies and staffing have increased. Meanwhile, the number of abortions at the clinic declined from 2,116 in 2009 to 1,629 [in 2012].” Id. 8. See 12 VA. ADMIN. CODE §§ 5-412-10 to -370 (2013) (providing comprehensive regulation of first-trimester abortion facilities). 9. See Roe v. Wade, 410 U.S. 113, 164 (1973) (“For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”); see also Jeter, supra note 3 (describing the history of violence against the Hillcrest Clinic); Adelman, supra note 3 (arguing that TRAP laws were designed not to make abortions safer but rather to limit access to abortions in Virginia). 10. See Kate Sheppard, Abortion Foe’s Latest Backdoor Ban, MOTHER JONES (June 27, 2011, 2:00 AM), http://www.motherjones.com/politics/2011/ 06/abortion-foes-latest-backdoor-ban (last visited Jan. 22, 2014) (arguing that TRAP laws, such as those in Virginia, are targeted specifically to close abortion clinics) (on file with Washington and Lee Law Review). 11. See Targeted Regulation of Abortion Providers (TRAP): Avoiding the TRAP, CENT. FOR REPROD. RTS. (Nov. 1, 2007), http://reproductive rights.org/en/document/targeted-regulation-of-abortion-providers-trap-avoiding- the-trap (last visited Jan. 22, 2014) [hereinafter Avoiding the TRAP] (discussing general requirements under TRAP laws across several states) (on file with 1236 71 WASH. & LEE L. REV. 1233 (2014) requires that women’s health centers meet the standards of Ambulatory Surgical Centers (ASCs),12 which perform outpatient procedures that are more invasive and more risky than abortion.13 These regulations generally cannot be met by doctors’ offices or outpatient clinics and go far beyond what evidence-based medical practice guidelines would require to assure quality care and patient safety.14 By either forcing some centers to close because they cannot meet the new requirements or by driving up the cost of abortion procedures so much that some women can no longer afford them, TRAP laws make a woman’s constitutional right to abortion illusory by imposing insurmountable obstacles on access to abortion.15 The right to decide whether and when to be a parent is essential
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