Targeted Regulation of Abortion Providers (TRAP)
Virginia imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.
Restrictions on Where Abortion Services May Be Provided
Among the most common TRAP regulations are those restricting the provision of abortion services to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Virginia has such regulations, including: Any facility that provides first-trimester abortion services to five or more women a month to must become licensed as a category of hospital subject to unique administrative, physical-plant, record-keeping, personnel, and patient-care requirements, Va. Code Ann. § 32.1-127 (Enacted 1979; Last Amended 2011). Any employee of the Virginia department of health has the right to enter the premises of any licensed abortion facility. All licensed facilities are subject to periodic and unannounced inspection, to occur at least once annually, and at any additional time. The regulations offer no protections for patient privacy or confidentiality. Further, the regulations grant state inspectors access to a list of all current patients as well as patient records. 12VAC5-412-110. Va. Code Ann. § 32.1-135 (Enacted 1979; Last Amended 2011).
Virginia's regulatory scheme includes extensive physical-plant requirements, which are more far-reaching than those in any other state. In addition to state and local codes and zoning and building ordinances, the regulations incorporate into law several chapters of a book of exhaustive guidelines for construction of new health-care facilities. (Guidelines, Facility Guidelines Inst., 2010 ed.) These regulations include many requirements that are not medically related, such as: specifications for the type of fabric used on window coverings; requiring widths of five feet for public hallways and 3.8 feet for staff corridors, as well as requisite ceiling heights for the boiler room; and mandating that a provider have four parking spaces per procedure room. 12VAC5-412 Draft Emergency Regulation and Notice of Intended Regulatory Action Agency Background Document. An abortion provider filed a challenge to these regulations, but the case has been postponed indefinitely. Falls Church Medical Center LLC v. Virginia Board of Health, et. al. CL13-1362.
Virginia requires all second-trimester abortion services be provided in a licensed general hospital or outpatient hospital. Va. Code Ann. § 18.2-73 (Enacted 1975), Va. Code Ann. § 32.1-123 (Enacted 1979; Last Amended 1989); 12 Va. Admin. Code § 5-410-10.
The U.S. Supreme Court upheld the constitutionality of Virginia's second-trimester hospitalization requirement, finding it to be reasonably related to the state's compelling interest in protecting maternal health. The court distinguished Virginia's hospitalization requirement from those at issue in Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983), which held that a second-trimester hospitalization requirement unconstitutionally burdens a woman's right to choose, because the Virginia requirements allow for an "outpatient surgical hospital" as an alternative. Simopoulos v. Virginia, 462 U.S. 506 (1983).
Restrictions on Who May Provide Abortion Services
Virginia prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed by the state to practice medicine and surgery may provide abortion care. Va. Code Ann. §§ 18.2-72, -73, -74 (Enacted 1975).