Cuccinelli: Virginia Has Legal Authority To Regulate Abortion CentersAug. 23, 2010
Attorney General Ken Cuccinelli issued an official advisory opinion Friday that states the Commonwealth of Virginia has the legal authority to regulate abortion centers. The opinion was in response to a formal inquiries by Senator Ralph Smith (R-22, Botetourt) and Delegate Bob Marshall (R-13, Manassas) asking the attorney general for a legal opinion as to whether Virginia has the administrative authority to regulate facilities and providers in which and who perform first trimester abortions. The answer from the attorney general is yes, provided they meet the criteria set forth in U.S. Supreme Court precedent. He cited previous Virginia regulations and the Fourth U.S. Circuit Court of Appeals' upholding of abortion center regulations in other states.
For years, the Senate Education and Health Committee has killed common sense legislation, passed by large bipatisan House majorities, regulating abortion centers in a manner consistent with other medical facilities. The "Committee of Death" accepts pro-abortion claims that such regulations are "unconstitutional." But in his statement accompanying the release of the opinion, Senator Smith said, "This opinion clarifies any legal questions on the issue and sets the stage for regulating abortion clinics like other medical facilities."
In other words, even if the General Assembly does not act the executive branch may, on its own initiative, regulate abortion centers just as it does other medical facilities (of course, regulations may be changed by each administration, whereas laws are more lasting). Here are some of the more salient points from the opinion (click here for entire opinion, including footnotes):
Medical facilities that provide abortion services in addition to many other services across a variety of disciplines clearly are subject to regulation by the Board. I note, however, that although the Board classifies "abortion clinics" as outpatient hospitals, neither the Regulations nor the Code define the term. Moreover, unlike later abortions, first-trimester abortions are not required to be performed in licensed hospitals. Health centers limiting their practice to specializing in reproductive services therefore often characterize themselves as "physicians' offices," whereby they are exempted from the Board's licensure requirements. Nonetheless, the Board has broad authority to adopt regulations as may be necessary to carry out the provisions of Title 32.1, and this regulatory authority includes defining an "abortion clinic," investigating the assertion by a facility that it constitutes physician's office, and regulating facilities beyond licensure.
Irrespective of the Board of Health's ability to regulate facilities, the Board of Medicine is vested with authority to regulate the practice of medicine, which includes providing guidelines for certain procedures and the ability to license, investigate, and discipline physicians, including those who perform abortions. The BOM's Regulations Governing the Practice of Medicine, Osteopathic Medicine, Podiatry and Chiropractic sets forth, for example, requirements for the proper administration of general anesthesia in non-hospital settings, a procedure that may be necessary depending on the abortion method employed. ...
In addition to applying regulations governing medical facilities and health care providers in general, the relevant agencies are authorized to impose regulations particular to abortion services. The General Assembly has afforded certain agencies broad authority to regulate in the area of health and has permitted them to classify facilities, procedures and personnel as they deem necessary and to promulgate regulations accordingly. ... The potential complications of abortion procedures include hemorrhage, cervical laceration, uterine perforation, injury to the bowels or bladder and pulmonary complications. Furthermore, these complications "must be immediately and adequately treated." Regulatory boards may distinguish between abortion and other procedures because, "'abortion is inherently different from other medical procedures," and "for the purpose of regulation, abortion services are rationally distinct from other routine medical services if for no other reason than the particular gravitas of the moral, psychological, and familial aspects of the abortion decision."
Based on Virginia's police power to protect its citizen's health and welfare, the broad authority granted to the regulatory boards, and the extensive statutory and regulatory scheme currently applicable to physicians performing abortions and the facilities in which such services are available, I conclude that the Commonwealth, by the Virginia Board of Health, the Virginia Board of Medicine, or any other proper agency, has the authority to continue to promulgate regulations affecting the performance of first trimester abortions. ...
Virginia previously exercised this authority, when on November 12, 1981, the Virginia Board of Health adopted "Rules and Regulations for . . . Licensure of Outpatient Hospitals, Performing Abortions Only" . ... the United States Court of Appeals for the Fourth Circuit provides clear guidance with respect to what constitutes permissible regulation and what does not.