By Peter J. Smith

RICHMOND, Virginia ( –Virginia Attorney General Ken Cuccinelli may be about to make abortion “safe, legal, and rare” – simply by making abortion clinics offer women the same standard of care required by other outpatient surgical facilities.

Statistically speaking abortion is the number one surgical procedure that women undergo in the United States, and most abortions are performed in the first trimester.

However in Virginia, as in many other places around the country, abortion facilities have often escaped the health and safety standards that are mandated for other medical facilities, such as hospitals, that engage in out-patient surgery.

Just recently, Louisiana corrected that problem by giving its Health Department the regulatory authority to shut down facilities that failed to live up to hospital health and safety standards.

But many abortion clinics in Virginia have operated under the law as “physician’s offices” rather than medical facilities. If the state follows Cuccinelli’s legal advice, that could soon change.

“It is my opinion that the Commonwealth has the authority to promulgate regulations for facilities in which first trimester abortions are performed as well as providers of first trimester abortions, so long as the regulations adhere to constitutional limitations,” Cuccinelli wrote in a legal opinion released Friday.

The opinion was written in response to an inquiry from Delegate Bob Marshall (R-Prince William) and Senator Ralph K. Smith (R-Roanoke), who asked whether the state had the authority to regulate facilities that perform 1st trimester abortions.

Cuccinelli pointed out that under Virginia statute, the definition of “hospital” can include abortion facilities because they fall within the Code’s broad definition of a “hospital.” In Virginia, a hospital is “any facility … in which the primary function is the provision of diagnosis, treatment, and of medical and nursing services, surgical or non-surgical, for two or more nonrelated individuals including … outpatient surgical [hospitals].”

He also pointed out that the Board of Health has already classified “abortion outpatient clinics” as outpatient hospitals, under its authority to classify hospitals.

“The attorney general’s comments on this issue points out to a real problem involving abortion practice in the United States, and that simply is that abortion across the United States is the single most commonly performed procedure on American women. And yet it does remain the most unregulated, underreported, and under-investigated of any form of medical care provided to American women,” Olivia Gans, President of the Virginia Society for Human Life, told “So it is quite scandalous that women’s lives are literally hanging in the balance along with their children at these abortion provider’s hands.”

Cuccinelli also pointed out that abortion clinics may not be able to hide from the Board of Health’s regulations as “physicians’ offices,” since the Board has the authority to investigate that claim. He said that the Board of Medicine has broad authority to regulate all health practitioners in the state, and can therefore regulate standards of care in first trimester abortion facilities.

Cuccinelli also said that these positions had been upheld previously in federal court.

However, abortion advocates are protesting the attorney general’s opinion, arguing that if most abortion clinics carried out the same standards of care for women that are mandated at hospitals they soon would be out of business.

According to the Washington Post, abortion advocates predict that only four out of 21 abortion clinics would be able to fulfill that standard of care if mandated by the state Board of Health. The rest would be shut down.

Tarina Keene, executive director of NARAL Pro-Choice Virginia, cast Cuccinelli’s opinion as “his first pitch” to make abortion inaccessible.

“These so-called regulations are only an attempt to shut down abortion clinics in the Commonwealth of Virginia,” Keene told the Post.

Gans told LSN that while NARAL was often prone to “hyperbole,”“it is at time to time the case that serious and quite startling infractions of what would be normal medical practice and care are seriously violated in the practice of abortion.”

Gans added that the biggest reason that abortion facilities operate with “a cloak of invincibility” under the law is due to the confusion surrounding what states can and cannot do under current interpretations of Roe v. Wade and Doe v. Bolton.

“It does strike one as astonishing that NARAL would reject every effort to protect the lives and well-being of the women who are actually seeking abortions, as often as they reject any measure that would ultimately also protect the unborn child,” said Gans. “One has to ask who is NARAL or NOW or Planned Parenthood or any of these pro-abortion groups supportive of? And it appears too often that they are protecting the interests of the abortionists and not the children and their mothers.” 

The full opinion can be read here.


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