Illustration by Jon Krause
There's nothing overt that links Molly Vick to the abortion-rights movement. She drives a shiny, black BMW that's unadorned with messaging bumper stickers or political slogans. She works as a banking-industry strategy analyst.
In fact, before last year, Vick never dreamed she'd be a leader among Virginia's active and busy efforts to hold back what she says are conservative state Republicans' efforts to curtail abortion access for Virginia women.
"Last spring of 2012 was when the vaginal ultrasound and the personhood bills were before the General Assembly — Virginia was getting all this media attention on Jon Stewart and on CNN for all this absurdity — that's when I became interested," says Vick, catching coffee on a recent morning.
Early last month, Vick personally launched the latest salvo in the war over women's rights, filing a legal petition challenging the Virginia Board of Health and Attorney General Ken Cuccinelli over their interpretation of the 2011 law directing the state to define and regulate abortion clinics as if they were in-patient hospitals.
"I have become an activist," she says. "It's not something I'd ever been involved in, in my adult life."
Emotions on both sides of the abortion debate have run high since the Board of Health's tension-filled and protester-packed April meeting, when the regulations were adopted.
To listen to opponents, the new regulations seem all but certain to close the state's 20 clinics and trigger a crisis for low-income women with nowhere to turn for health care.
But according to proponents, the most controversial parts of the new regulations — which paradoxically deal with otherwise droll-seeming nuances of building-code enforcement — ensure that no Virginia women will risk their lives in unregulated, unsanitary conditions.
"We're pleased that the General Assembly saw fit to put it in the hands of medical professionals, and they, in turn, came up with strong safety standards for these outpatient abortion centers," says Victoria Cobb, president of the religious-conservative Family Foundation , a lobbying and political-action organization that has spent the better part of its decade-long existence fighting to implement the law, which is patterned after laws in other states where abortion clinics have since found themselves hard-pressed to maintain operations.
Cobb calls the regulations common sense and says she doesn't see what the fuss is about on the abortion-rights side. "Because abortion is such a political hot-button issue, that means that basic safety standards get caught up in the politics."
But opponents of the law and its accompanying new regulations say the politics started with the arrival of the administrations of Cuccinelli and Gov. Bob McDonnell. The governor supported the regulations and, opponents claim, strategically appointed Cobb's husband, Matt Cobb, as deputy director of health and human resources to help shape the clinic guidelines along conservative lines. (Victoria Cobb rebuffs suggestions that she and her husband might have colluded in any way to influence the regulations. "It comes down to the Board of Health, which he doesn't have a vote on," she says.)
Opponents also say that Cuccinelli overstepped his authority in pressuring the Board of Health to adopt the guidelines without a clause exempting existing clinics from the new standards. If the board bucked his counsel, he threatened not to represent it should any legal challenges arise.
"This is policy through minutia," says Scott Price, who heads the Alliance for Progressive Values, a lobbying organization launched in response to abortion-rights proponents' outrage over the 2011 law defining and regulating abortion clinics in Virginia.
Price's group helped kill a wave of anti-abortion measures in the 2012 session. But the alliance was unable to soften the regulatory language that fails to provide a grandfathering exemption to the strict new building-code guidelines for abortion clinics. Many of those guidelines require major structural changes to existing buildings, such as widening of doorways and halls; installing elevators, awnings and new ventilation systems; ensuring four parking spaces for each surgical room; and dictating the kind of hand-washing sinks that employees use.
Repeating a consistent concern from the abortion-rights side, Price says, "This time next year, it's possible that for the vast majority of Virginia women, they're not going to have access to [legal] abortion — at least not in this state."
Attempts seeking comment from officials at three Richmond-area abortion clinics, including the offices of Planned Parenthood, were not successful by press time. But in previous public statements during hearings about the regulations and to media outlets, those operators have agreed that they feel threatened — and that many, if not all, eventually will be forced to close because they can't afford costly renovations needed to comply with the new regulations. In the Tidewater area, the Hillcrest Clinic, which has performed abortions for more than 40 years, announced recently that, faced with nearly $500,000 in costs to renovate, it planned to close. Meanwhile, in Northern Virginia, the Falls Church Healthcare Center has filed an administrative appeal against the regulations, claiming they are so burdensome that it will be forced to close its doors.
But Cobb says that she believes in the free market more than she believes in breathless predictions that the result of the regulations, which were set to take effect June 20, will be no abortion clinics in the state. "I just don't see that scenario ever coming into place," she says, noting that 19 clinics have already "submitted their plans to stay open."
The truth may be between the extremes, says Dr. Karen Remley, the former Virginia health commissioner who resigned in October, stating her objection to what she said was political interference in her agency's process to craft the abortion-clinic regulations. "There will be some facilities that have the money" to renovate their facilities, Remley says. But, she adds, some will certainly be forced to close, unable to afford renovations to meet the standards required of newly constructed hospital facilities.
Critics say that even newer hospitals like Memorial Regional Medical Center in Hanover, built little more than a decade ago, might not meet all of those current requirements — nor would they be required to, since they are allowed to operate under the regulations in place when they were built.
Not so for abortion clinics. Under the new laws, Remley says, they follow some of the strictest regulations. "When completing that regulatory process, they will be some of the safest places in terms of infection prevention, medical quality and patient care." To that, Remley says, she does not object:
"I get the safety part."
But high-quality health care shouldn't come about as a result of overstepping the regulatory process, Remley says, explaining her decision to step down. "I'm really not a pro-choice or pro-life [person] … what's important is [abortion] is a legal procedure in our country. I was comfortable with [the regulations'] approach and used that approach until the point where I felt the attorney general's office, from my perspective, had overstepped his authority … and was overreaching in the approach to these facilities as opposed to any others."
Remley says she believes existing clinics ought to have been grandfathered, just as hospitals are, to new regulations. "For me this was really about good government — that's the reason I why I left," she says. "Anyone in government has to be very careful about how they use their authority."
That's how Vick sees it, too. Her petition, filed May 6, challenges the interpretation that the new law does not allow for grandfathering of old clinics.
Vick's petition reasons that by Cuccinelli's interpretation, the same public health and safety concerns should also mean that the regulations would be applied to older hospitals — that all state hospitals must be forced by the Board of Health to submit plans to come into compliance with modern building and adopted safety codes.
Vick's love of research sent her in search of how the state handled hospitals when it first adopted a law that defined and regulated those facilities. In a dusty box at an off-site storage location of the Library of Virginia, she discovered that the initial statute that legally created general hospitals in Virginia code only came on the books in 1947.
"They're making this argument that [abortion clinics] did not exist before they were named" in state code, she says. "I felt reasonably confident that hospitals did exist [before 1947], and when they made that law, they didn't knock them all down and make them rebuild them."
The 1947 hospital law appears to make a clear, if indirect, distinction between new and old hospitals that exempts the older hospitals from adhering to the new standards. For example, in one clause of the law, it is "recommended" that old hospitals add "no-slip treads" to stairways, while it states such treads are required in new facilities.
Cuccinelli's office, in a statement, says it is aware of Vick's petition but rejects her interpretation. "General hospitals that are already licensed under the existing regulations will continue to have to comply with the building-code provision that was in effect at the time of their licensure, and they would not have to retrofit to come into compliance with the newly amended regulations," Cuccinelli spokesman Brian Gottstein tells Richmond magazine via email. "According to the law, the abortion facilities are all ‘new' as licensed hospitals, and therefore, have to meet the new regulations, just as every other new hospital seeking initial licensure would."
On the issue of exempting facilities, Gottstein says that Del. Kathy Byron, a Lynchburg-area Republican who sponsored the legislation, "testified before the Board of Health that the law was not intended to grandfather abortion clinics and that the debate on the floor before the vote made that clear.
Additionally, there were bills during this last session of the General Assembly to grandfather existing clinics, and they failed. It is clear that including a grandfather clause for abortion clinics was beyond the scope of the board's authority."
And while abortion-rights leaders say that further challenges to the new regulations are likely, all parties agree that the polarized atmosphere in Capitol Square will mean more fights over abortion.
"When you have a clinic on the second floor of a building with no elevator and rickety stairs, and you have EMTs who have to get up there and get people out of there, that's not safe," says Cobb, of the Family Foundation. "Women deserve better."
But better care doesn't have to mean sacrificing care altogether, says Price, with the Alliance for Progressive Values.
"The whole thrust of this is to make it as difficult as possible and force women to carry to term," says Price. "In a business-friendly state like Virginia, it's surprising."
Remley, even from her position of relative neutrality, is hard-pressed to disagree. She notes that during her five years at the health department, teen pregnancies fell, and Virginia's abortion rate dropped by 14 percent. But no matter how low those rates are, she says, women will still seek an abortion, and when they do, it should be safe.
"I think what the prudent Virginian would want … [are] appropriate and fairly regulated abortion facilities that ensure patient safety and quality without decreasing access," she says. Of the struggle between advocates for access and those seeking regulation, she adds, "I don't think it will ever be over."
