As lawmakers debate putting restrictions on clinics that provide abortions across North Carolina, opponents caution that abortion providers in other states have found that when new regulations come into effect, the devil is in the details.
By Rose Hoban and Holly West
State health officials told lawmakers at a House committee meeting on Tuesday that they’re willing to look at North Carolina’s abortion clinic regulations, but they also signaled a reluctance to fast-track any sweeping changes to the way the state regulates the provisioning of abortion.
Last week, North Carolina lawmakers proposed a raft of new regulations that would change the way the state’s abortion providers operate. House Bill 695 would add conscience protection for health care facility workers ranging from janitors to nursing assistants and would ban sex-selection abortions from being done in North Carolina.
The bill also would require that abortion clinics come into compliance with standards set for ambulatory care clinics and require physicians to be present throughout the entirety of abortion procedures, something Health and Human Services Secretary Aldona Wos said she supported in theory but told lawmakers would need study.
“We need to ask serious questions about our current regulations. Are the regulations that we presently have sound, are they reasonable and are they being enforced?” Wos asked the committee.
“Unfortunately, on these issues, the experts in the Department of Health and Human Services were previously not asked for their input,” she said.
Tighter requirements haven’t reduced abortions … yet
At least 23 other states have enacted legislation requiring that abortion clinics meet the same standards as ambulatory surgical clinics, with varying results, according to the Guttmacher Institute, an organization that gathers data on abortion in the U.S.
According to a datasheet on the Guttmacher website, several states have put in place detailed requirements about facilities’ layout and construction standards. Twelve states have enacted regulations detailing the width of corridors and procedure rooms; types of heating, ventilation and air-conditioning systems; and the size of parking lots.
According to Planned Parenthood of Central North Carolina head Melissa Reed, Virginia’s newly passed regulations require clinics to adhere to the same standards as hospital standards written in 2010.
She said her organization has had to spend hundreds of thousands of dollars per clinic to bring them up to the new standards.
“They didn’t grandfather in existing facilities,” Reed said. “Even if the facility was built in 2009, it would have to comply with 2010 regulations.”
She also described detailed regulations promulgated in Virginia that allow for surprise inspections, something suggested in Tuesday’s committee meeting.
Reed said Virginia’s regulations don’t require that state employees show identification as they come in to do inspections. Her organization expressed its concern to the Virginia Board of Health about this and other inspection procedures, saying, “It is essential that Department of Health employees properly identify themselves when seeking entry to an abortion facility, due to the sensitive nature of the provision of abortion care, and the targeting of abortion providers and patients for violence and harassment.”
Reed also said regulations would allow inspectors to look at patient records without redacting names and confidential information.
“There’s been an effort where the Board of Health [in Virginia] is working with us to maintain client confidentiality, but the regulations don’t require it,” Reed said, expressing concern that this could be a violation of the Health Insurance Portability and Accountability Act, the primary federal patient privacy law.
Virginia Health Commissioner Karen Remley eventually quit her job, writing to Gov. Bob McDonnell that “how specific sections of the Virginia Code pertaining to the development and enforcement of these regulations have been and continue to be interpreted has created an environment in which my ability to fulfill my duties is compromised.”
“I’ve heard that one or two reputable clinics have closed because of requirements in Virginia,” said the Guttmacher Institute’s Elizabeth Nash.
She noted that the fight over regulations in Virginia has resulted in the adoption of emergency regulations that only took effect in May of this year, although the law was passed in mid-2011.
“The final regulations are not yet in place,” Nash said.
She said it’s hard to know what the effects of such regulations have on the rates of abortions, as many of them have been passed only in the past few years.
Nash also said lawsuits have been filed in many of those states, arguing that the regulations create an “undue burden” on women seeking the procedure.
That’s been the case in Alabama, where Planned Parenthood of the Southeast filed lawsuits to stop clinic regulations from taking effect this month. The organization received a two-week temporary restraining order on some parts of the law
“Right now, it allows us to provide services,” said Nora Spencer, communications director for PPSE.
Paige Johnson from Planned Parenthood of Central North Carolina said her organization would continue to provide women’s health services at the nine clinics they have in the state, only four of which provide abortions. About 36 facilities across the state offer abortions; only one would meet the state’s standards for ambulatory surgical centers.
“Any changes will be extremely costly, depending on where you are and how new your facility is,” Johnson said, especially for smaller, individual providers that don’t have the fundraising muscle of Planned Parenthood. “What we do know is that this kind of legislation does eliminate access to abortion.”
“It’s premature to say what it’s going to mean for us because what the bill does is punt the writing of the restrictions to the McCrory administration,” she said.
At Tuesday’s meeting, the administration signaled a reluctance to make big changes.
DHHS Sec. Wos said her department and Gov. Pat McCrory agree with conscience provisions in the bill. But she said they were less clear on what legislators wanted from additional regulations on clinics.
“[T]here are other parts of the bill that are far more complex and require further discussion and clarity prior to passing of this bill,” Wos said.
She pointed out that the state’s clinic safety regulations have not been updated since 1995, and no one has studied how to improve safety in North Carolina abortion clinics.
Wos also pointed out that the Division of Health Services Regulation only has 10 inspectors statewide to cover hundreds of clinics and hospitals.
“As a result, DHHS is only able to inspect the medical component of abortion clinics every three to five years,” Wos said. She said the existing regulations need updating, and that this would be the right time to study them.
“The experts and professionals at DHHS believe that some of the most consequential ways we could improve the health and safety of women would really be to dedicate resources to provide more frequent regular inspections and to review our existing regulations,” Wos said.
DHSR head Drexdel Pratt said he too found some of the proposed regulations to be unclear, noting in particular that the portion of HB 695 that would require physicians to be present throughout a procedure has sections “where it is unclear from a regulatory perspective what is intended to occur.”
That “could be interpreted to mean present during the administration of all drugs or chemicals to complete the medication abortion procedure,” Pratt said. “Or it could be interpreted that the physician would only have to be present during the administration of the initial drug or chemical.”
He noted that in a medical abortion, it can take several days for a woman to finish passing all of the contents of her uterus.
“DHHS does not have the information at this time to determine whether this would actually improve safety,” Pratt said.
Bill supporter Ruth Samuelson (R-Charlotte) said the rules-making process would be the place where some of those questions get ironed out.
“That’s not our job as bill sponsors to say to [DHHS], ‘We want you to pick this one … and not that one,’” she said.
Rep. Jim Fulghum (R-Raleigh), a semi-retired neurosurgeon, said the study process could produce improved rules that don’t have to be restrictive.
“We’re just talking about basic, safe facilities,” he said, “separate recovery rooms, separate operating rooms, medical procedures being outlined and recorded, patient records being held in some sense of integrity.
“Pennsylvania, Kansas and Virginia have come to the standard where now abortion clinics are required to have the same exact standards as ambulatory surgical centers and be subject to unannounced inspections.
“I don’t think this bill suggests we go there. I don’t think we need to go there if the regulations are enforced as they are written.”
PPCNC BOH Memo Final (PDF)