A handful of pro-choice activists make up the audience at the State Board of Health's quarterly meeting last week. They sit quietly and don't wave signs — the scene is somber compared with the boisterous crowd that packed the board's previous meetings.
With strict new architectural regulations set to take effect and likely close many of the state's 20 abortion clinics, the activists are making a last stand of sorts.
One after another, they rise to address the board, asking: Shouldn't the new building codes that are expected to shutter the abortion clinics also be retroactively applied to all other hospitals, nursing homes and outpatient nursing facilities in the state?
The question is at the center of three petitions filed with the board by pro-choice activist Molly Vick. They ask the board to apply the new rules to hospitals and health care facilities that currently are exempt from the regulations.
Vick and her allies argue that because Attorney General Ken Cuccinelli's office told the board it was unable to exempt existing abortion clinics from the new regulations, they're similarly unable to exempt other facilities governed by the regulations. If the same rules the state is set to apply to abortion clinics are applied to all other facilities, Vick says, hospitals across the state will be forced to close. Equitable application of the law is only fair, Vick says.
Cuccinelli, the Republican candidate for governor and a staunch opponent of abortion, isn't impressed with Vick's logic.
"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's spokesman Brian Gottstein says in a statement. " [TRAP laws passed last year] classified facilities performing five or more first trimester abortions per month as 'hospitals.' 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."
A debate on the two arguments isn't likely. The Board of Health doesn't take up Vick's petition as an agenda item at the meeting. Instead, because of the timing and the way the board is set up, the state health commissioner appointed by Republican Gov. Bob McDonnell will issue a unilateral ruling before the board's next regular meeting.
Jim Edmonson, one of two board members sympathetic to the pro-choice activists' position, puts in a request for a special meeting. But he needs two of the 14 other board members to back him and the support isn't forthcoming.
Edmonson says the special meeting still could happen if a board member changes his or her mind, but acknowledges that it isn't likely. "It seems to me Ms. Vick has found a very serious precedent and raised an issue the state is going to have to consider," he says. "How that all plays out remains to be seen."