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Va. Governor McDonnell Expected to Issue "Emergency" TRAP Regulations Today

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Written by Editor-in-Chief Jodi Jacobson for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Using a highly unusual "emergency" process, Virginia Governor Bob McDonnell is expected on Friday, August 26th to issue guidelines under what is known as a Targeted Regulation of Abortion Providers (TRAP) law that will treat clinics providing first trimester abortions as a form of hospital. There are no medical or public health indications for such regulations.

In March, McDonnell, a virulently anti-choice Republican, signed SB 924, a law that requires clinics performing first trimester abortions to be regulated as hospitals. The bill gave the state's Board of Health 280 days to create and to enact the new regulations. Because McDonnell has invoked "emergency" status for the process, it is expected that temporary regulations--which will first be issued tomorrow and voted on by the Board of Health in September--will be put in place for a period of up to 18 months while permanent rules are developed through a more established process.

The catch is this: the McDonnell Administration is bypassing virtually all democratic processes in place for the creation of such regulations. Under the emergency designation, the normal process for public review and comment on regulations, which usually involves several opportunities for expert testimony and public comment and an economic impact assessment among other considerations, has been completely thrown out. Instead, draft regulations will be released tomorrow, and then voted on at a meeting of the Board of Health on September 15th. Instead of any public hearings or comment periods, the Board meeting will be the only time for the public to speak out.  After the board votes on these temporary regulations, they will go to the governor for final approval. Moreover, the McDonnell administration has claimed it has the authority to rewrite without any further notice or input any temporary regulations presented to it for signature.

I'd say that is as close to government by fiat as it gets.

Analysts suggest that the temporary regulations will have an insidious effect of creating uncertainty among clinics as to what to do. Normally, such regulations would include a period of time--two years--during which clinics can make accommodations for any changes that might be necessary to comply with law, such as changes in physical structure, which can be expensive.  But by issuing temporary regulations, the McDonnell Administration puts existing clinics on an uncertain path: Do they take on the expense of adapting to regulations that might be thrown out or replaced in 18 to 24 months when more "permanent" regulations are published? Or do they take the risk of being found in violation of medically-unnecessary regulations that are costly and impede their ability to provide services to women in need?

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