The following is testimony provided to Virginia Department of Health Commissioner Karen Remley by Dr. Howard Jones on Virgina’s proposed TRAP regulations.

You can find our coverage on TRAP (Targeted Regulation of Abortion Providers) regulations in various states here.

I write to you as a Virginian, a physician, and a founding member of Physicians for Reproductive Choice and Health (PRCH). PRCH is a doctor-led national advocacy organization that relies upon evidence-based medicine to promote sound reproductive health policies. I am an obstetrician-gynecologist and a co­founder of the Howard and Georgeanna Jones Institute for Reproductive Medicine at the Eastern Virginia Medical School. I have devoted my career to helping women have families. For the past 33 years, my home has been in the Norfolk area.

I am not an abortion provider, but I know that access to safe and legal abortion care is critical to the health of women. Abortion has been provided safely in Virginia for many years. Abortion is a safe medical procedure with an outstanding safety record. Serious complications arising from surgical abortions provided before 13 weeks are rare.¹ Of women having abortions before 13 weeks, 97 percent report no complications; 2.5 percent have minor complications that can be handled at the medical office or clinic; and less than 0.5 percent have more serious complications that require surgical intervention and/or hospitalization.² In the U.S., more than 90 percent of all abortions are provided in outpatient health centers.

Nevertheless, this year the state legislature passed a law classifying health centers that provide five or more abortions per month as a type of hospital. I am very concerned that the proposed regulations would compromise the confidentiality of patients as well as drastically limit access to abortion care. I urge the State Board of Health to reconsider its approach.

The regulations proposed to implement that law do not appear to be related to improving patient outcomes. Regulations governing abortion practice should be rooted in evidence-based medicine, serve legitimate health interests, and not impede access to abortion care. The draft regulations single out abortion providers for regulation not required of other outpatient facilities providing similarly complex medical services. The draft regulations also contain several requirements that have no medical justification. My objections are explained below.

12 VAC 5-412-100 – Right of Entry – this rule would allow Department of Health (DOH) employees to enter a facility at any time, without notice. This rule should contain a requirement that all DOH employees properly identify themselves when seeking entry to an abortion facility, due to the sensitive nature of the provision of abortion care, and the targeting of abortion providers and patients for violence and harassment by anti-abortion extremists.

12 VAC 5-412-110. On-site inspection – This provision requires that any Office of Licensure and Certification (OLC) employee be given access to a health center providing abortion at any time. The rule also requires that OLC representatives be provided access to patient medical records and a list of current patients. The rules contain no safeguards for patient confidentiality.

Confidentiality is of utmost importance to the medical community and providers of abortion take confidentiality very seriously. Sadly, patients are often the targets of protesters outside of clinics and there is a history of antiabortion activists seeking patient information in order to deter those women from having abortions. I urge that an explicit requirement of confidentiality for DOH/OLC employees and contractors be instituted. Such a requirement should mandate that any identifying patient information that a DOH/OLC representative encounters or possesses be kept in the strictest of confidence. The regulation should also make clear that state employees cannot interview patients unless a patient gives their permission. Lastly, the regulation does not limit the inspection to normal business hours. This should be added since there is a penalty if a staff member is not available to provide access to patient records within an hour of an inspector’s arrival.

12 VAC 5-412-140. Governing body; and 12 VAC 5-412-150. Policy and procedures manual – these rules would give the DOH the right to ownership information and many types of facility policies and procedures, including facility security and disaster preparedness plans. A similar confidentiality requirement needs to be included here. Abortion providers have been the targets of violence and harassment, including providers in Virginia and in my hometown of Norfolk.

VAC 5-412-380. Local and state codes and standards – Abortion is a safe, commonly provided medical procedure. It is not necessary to incorporate extensive, burdensome requirements that have no bearing on patient safety in abortion care and that that will reduce or eliminate access to care. In fact, this provision is even stricter than the one that applies to hospitals in Virginia. The standards incorporated for abortion providers do not contain any exemptions for existing structures. But the regulations for Virginia hospitals designate that a similar provision only applies to new construction.⁴ The Board should reconsider these unjustified regulations. Alternatively, at least facilities currently providing abortion should be exempted, preventing health centers from having to close to undergo costly construction.

12 VAC 5-412-90. Allowable Variances – this provision allows for the granting of variances from specific regulations by the Department. The language seems to only allow a temporary variance and requires a showing of an “impractical hardship” unique to that health center. This language is different from that applied to hospitals. Hospitals may be granted a temporary or permanent variance where a requirement is “clearly impractical…provided safety and patient care and services are not adversely affected.⁵”

I am deeply troubled that the draft regulations create unreasonable obstacles for health care providers trying to provide abortion care. When abortion becomes less accessible, it becomes less safe. Women may delay their care as they locate a provider, travel greater distances, or even seek the services of an unlicensed provider. In 2008, 85% of Virginia counties had no abortion provider and 54% of Virginia women lived in those counties.⁶ While Virginia women have the right to safe, legal abortion, in reality there are fewer facilities in Virginia that provide this essential care.⁷ The Department’s proposed regulations will only exacerbate this situation. Please do not undermine women’s health in the Commonwealth by instituting medically unjustified rules that will only serve to hinder access to safe, legal abortion services.

I remember the days before abortion was legal. I saw many patients who had self-induced abortions because at that time there was no legal way to end a pregnancy. I saw women who had become infected and had to be admitted to Johns Hopkins Hospital, where I worked. These patients were often extremely ill and some of them died. I fervently hope that this situation will not be repeated as it could be if legal abortion were not readily available. I particularly remember one patient, Viola who was desperately ill at the Hopkins Hospital from a self-induced abortion with a massive pelvic infection which caused her to linger for days. This will happen again if legal abortion is not readily available to those who seek it.

1. National Abortion Federation Safety of Abortion citing Elam-Evans LD, Strauss LT, Herndon J, Parker WY, Whitehead S, Berg CJ. Abortion Surveillance-United States, 1999. Morbidity and Mortality Weekly Report 2002; 51 (SS09): 1-28.

2. Id. citing Tietze C, Henshaw SK. Induced abortion: A worldwide review, 1986. Third edition. New York: Guttmacher Institute, 1996.

3. For example, John Salvi was arrested in Norfolk after opening fire at a clinic that provided abortions. John Kifner, “Anti-Abortion Killings: The Arrest: Suspect in Clinic Killings Eludes Hunt But Is Caught in 3d Attack, in Virginia”, New York Times, January 1, 1995. The day before Salvi had killed workers at a health facility in Brookline, MA. Fox Butterfield, “Man Guilty Of 2 Murders In Storming Abortion Sites,” New York Times, March 19, 1996.

4. 12 VAC 5-410-650. Guttmacher Institute, State Facts About Abortion. The number of abortion providers in Virginia declined by 13% between 2005 and 2008. Id.

5. Guttmacher Institute, State Facts About Abortion. The number of abortion providers in Virginia declined by 13% between 2005 and 2008. Id.