Harbach: Proposed regulations are bad law, bad for women
On Friday, the Virginia Board of Health will consider whether to finalize burdensome new regulations for women’s reproductive health centers. The proposed regulations would treat these centers like hospitals, imposing onerous new building and administrative requirements. A favorite tactic of the anti-abortion movement, these “TRAP” regulations (Targeted Regulation of Abortion Providers) are flawed policies resulting from a flawed process, and they’re likely to have concerning, and unintended, consequences.
From their inception, the regulations appear to have been driven by ideology rather than health and safety. Politics has infected both the process by which these regulations came about, and the content of the regulations themselves. Rather than following the usual administrative process, these regulations were fast-tracked on an “emergency” timeline (despite the absence of any apparent emergency), limiting opportunity for public comment and debate. Even within the compressed time frame, both the public and the medical community spoke out against the proposed regulations. Yet despite this opposition, last fall both the attorney general and the Department of Health rejected the recommendations of their own panel of academic medical experts — including the dean of VCU’s medical school and UVa’s chair of Obstetrics and Gynecology — in favor of costly, medically unnecessary requirements.
The resulting TRAP regulations are a departure from longstanding Department of Health procedures and practice. Standard practice in regulating hospital facilities imposes construction requirements on new facilities, not existing ones. Women’s health centers have been safely providing services to women in the commonwealth for decades. Yet the proposed TRAP regulations would require these existing centers to retrofit clinic facilities by making extensive structural renovations. These requirements won’t advance women’s health, but they will impose prohibitive costs, diverting funds from patient care, increasing the cost of patient services, and threatening clinic closure. And the regulations don’t just change the standard practice on retrofitting existing health care facilities. They also specifically target reproductive health outpatient facilities by creating unique burdens not imposed on other providers of outpatient services such as oral surgery, vasectomies and cosmetic surgery.
But the TRAP regulations aren’t just flawed policy. They’re also bad law. By deviating from standard policy and practice during the drafting process and in the substantive content of the regulations, the regulations may run afoul of Virginia law. By subjecting women’s reproductive health centers to unique burdens not imposed on other outpatient providers, the regulations could deprive the centers and Virginia women of equal protection of the laws. By placing substantial obstacles in the paths of Virginia women who seek abortion services, the regulations could also create undue burdens that violate women’s constitutional rights.
The TRAP regulations may also have perverse effects. The great irony of TRAP regulations is that rather than protecting women’s health, they may actually threaten women’s health and increase the number of later-term abortions and unintended pregnancies. The increased costs and limited access caused by TRAP laws can delay women’s access to abortion services, leading to later-term abortions that present increased health risks for women and other concerns. And if the TRAP laws result in clinic closures, fewer Virginia women will have access to the affordable, comprehensive reproductive health services they rely on to help plan their families and avoid unintended pregnancies.
Perhaps the most shameful consequence of these TRAP regulations is that they won’t impact all women in the commonwealth equally. Women of means in Virginia will continue to be able to access family planning and reproductive health services. But poor women and rural women in Virginia frequently rely on these clinics for their primary health care needs — things such as annual exams, birth control and family planning, breast and cervical cancer screening, and screening for sexually transmitted infections. Virginia’s most vulnerable women will disproportionately feel the impact of these regulations, and their lives and health will be the poorer for it.
We can do better. Rather than devote limited state resources to TRAP regulations that increase costs and limit services, Virginians could come together to identify common-ground approaches to reduce the need for abortions in Virginia. Rather than target reproductive health providers with additional burdens that offer no health benefits, we could instead focus our efforts on promoting safe and responsible sex that helps prevent unintended pregnancies, and post-conception alternatives such as healthy childbearing and adoption.
The Board of Health will vote on the proposed permanent regulations this Friday. Let’s hope they don’t fall for the TRAP.