Virginia to Use Licensing Scheme to Shut Down Abortion Clinics?

Virginia Gov. Bob McDonnell (R), who ran on cutting unnecessary regulation, does not seem to mind singling out certain small businesses for some new, ruinously expensive red tape.

In 2011, McDonnell signed a bill directing the Board of Health to impose new licensing requirements on abortion clinics. The rules, which the Board will consider when it meets tomorrow, would force the state's clinics to abide by 46 pages of design requirements for new hospital construction.

Existing hospitals and outpatient facilities that perform similarly invasive procedures would not have to upgrade.

To comply, clinics would have to move to new buildings or undertake costly and pointless renovations to guarantee hallways are of proper width and height, that waiting rooms have water fountains, that exam rooms have at least 80 feet of clear floor space, that new ventilation systems are installed, and that front entrances are covered. According to the bill's language:

The intent of this regulatory action is to promote and assure the safety of patients who receive first trimester abortion services… The standards are required to include those for construction and maintenance; operation, staffing and equipping; qualifications and training of staff; and infection prevention, disaster preparedness and facility security.

Moreover, the new licensing rules require that abortion providers would be forced to turn over sensitive records about patients and clinic owners to the state with no assurance that the information will be kept confidential.

So-called TRAP laws, or Targeted Regulation of Abortion Providers, are thinly-veiled attempts to regulate abortion out of existence—without making it illegal—by imposing cost-prohibitive rules that have no rational connection to health and safety and that do not apply to other health facilities.

Nevertheless, supporters of the new licensing rules, such as the Family Foundation, contend that state-mandated water fountains are simply reasonable measures to ensure patient health and safety. And they can make that claim with a straight face because the courts have not called them on it.

Judges are generally reluctant to scrutinize regulation once it has been deemed necessary to protect health and safety by the legislative or executive branches. This is a legacy of progressive, New Deal-era judicial philosophy that grants wide latitude to the government to regulate our lives. See occupational licensing, food restrictions and eminent domain.

As Reason's A. Barton Hinkle argued last month, TRAP laws reveal that both sides of the aisle are happy to deploy the full arsenal of the Nanny State—they just disagree about when to do so.

In June, former intern Melanie Kruvelis described the battle over TRAP laws in Michigan.