The state of Virginia's Board of Health
recently enacted new regulations on abortion clinics. Ostensibly
enacted to protect women's health, in practice they serve as an
interesting example of how the regulatory state can be, and often is,
used by governments to chip away at rights that are impractical to
simply abolish wholesale. (Found via Reason.)
Last year, the state's General Assembly
passed, and Governor Bob McDonnell signed, legislation requiring the
state's Board of Health to institute new regulations requiring all
existing abortion facilities performing five or more first-trimester
abortions per month to comply with regulations similar to those that
apply to new hospital construction (but not preexisting hospitals) in
the state. The Board did so, creating an extensive list of new
regulations last year, covering all existing and future facilities in
the state, and finally voted to approve them this September. They
will go permanently into effect next year, contingent on approval
from Gov. Bob McDonnell. The board had voted back in June to include
a grandfather clause exempting existing facilities, but reversed
itself under pressure from Virginia's Attorney General, Ken
Cuccinelli.
(For a more in-depth history see this article at Mother Jones. Detailed and refreshingly light on the conflation of forcing women to carry a pregnancy to term and failing to force some third party to subsidize recreational sex when a woman demands it that now infests left-of-center commentary on the subject.)
The new requirements (see this PDF file, starting on page 27)
imposed on existing buildings are taken mostly from the 2010
Guidelines for Design and Construction of Health Care Facilities
published by the Facility Guidelines Institute. These include things things a minimum
size of 80 feet for exam rooms for exam rooms, corridors at least 5
feet wide and seven feet ten inches tall, hands-free sink faucets, water
fountains in waiting rooms, and new ventilation systems. Many of
these are not trivial modifications to make to an existing building,
and some existing facilities in the state will have to undergo costly
renovations in order to continue legally operating.
Now, it's fairly obvious that the real
point of this measure is to make it harder for abortion clinics to operate in Virginia, with the supposed public health justification
serving as a fig leaf. The naked opportunism of the new regulations
is made plain by the fact that they require existing abortion
facilities to comply with building codes that apply only to new
hospitals, which makes very little sense if protecting the health of
patients at these facilities is really what this is about. Surely
protecting the health and safety of people with heart problems or
inflamed appendixes or stab wounds is no less important than
protecting that of women undergoing abortions, after all. The
improbability of the regulations' conservative supporters being
driven by the genuine belief that women getting abortions ought to
have more government-mandated protection
for their health than everyone else should be obvious.
(Adding to the absurdity, the reason
the regulations specify five or more first-trimester abortions is
that abortions later in the pregnancy are required by law to be
performed at a hospital, which may or may not be obliged to follow
the same rules- so late-term abortions entail
less potential risk to patients and so warrant less
oversight than early ones, I guess.)
Indeed, calling the public health
justification for these regulations a cynical ruse is actually a more
charitable interpretation of their supporters' motives then taking
them at face value. If these regulations are really such a good idea,
so good that they should be imposed on existing facilities at
considerable cost, their supporters in the legislature are guilty of
an unconscionable betrayal of their constituents by wasting time and
energy imposing them on only a very small niche of healthcare in the
state when they should be fighting tooth and nail to get them in
place everywhere, in old and new hospitals alike. While they
dither, countless Virginians are apparently being imperiled every
year in hospitals that were built before the current hospital
construction regulations and exempted from current building
standards, allowing their irresponsible owners and administrators to
wantonly gamble with human life in miasmic corridors only 7'9” in
height.
The vast scope of modern government
power gives it tremendous latitude to attack freedoms that it
supposedly still respects, either because they are supposed to be
legally guaranteed rights the government cannot take away or because
public opinion wouldn't tolerate their overt elimination. For instance, if it can't simply
announce that no one can own a gun, it can still impose “reasonable
regulations” to make it more burdensome, possibly to the point of a
de facto ban. For instance, contrary to what is often thought,
the city of Chicago has never actually banned owning handguns- you're
just required to register them. Which you can't do without a time
machine, because the city stopped accepting new registrations in
1982. It can't deny people the right to travel, but it can put all
sorts of strings on any means of travel other than your own likes.
You want to fly, you jump through whatever intrusive or degrading
hoops the government demands- movement may be a right, but flying is
only privilege. You want to drive- a driver's license is a privilege,
not a right, and the government owns the roads, so you've “agreed”
to give up some of your protections regarding search and seizure.
And it can't make abortion illegal, but
it can do quite a bit to make legally getting one as burdensome as
possible. The government of Virginia is no stranger to that, being
one of the states requiring women to undergo a medically pointless
abdominal ultrasound before receiving an abortion, supposedly to
ensure that women can make an “informed choice” about the
procedure. And that was the compromise solution, of course, enacted
after supporters of the notorious original version of the law
requiring transvaginal ultrasound compromised.
(Again, the limits of the measure's
scope betrays the actual intent. The version of the ultrasound bill
eventually passed in Virginia exempts women whose pregnancy is the
result of rape or incest. That makes sense if the real purpose of the
bill is to make getting an abortion a more burdensome and unpleasant
experience- many people might like that idea in general but draw the
line at doing it to a rape victim. It makes much less sense if the
mandatory ultrasound really is supposed to be for the benefit of the
woman. If you genuinely think it helps women considering abortion,
and in fact helps them so much that it should be mandatory, why in
God's name would you single out victims of rape and incest as the
only women who aren't guaranteed this help?)
This is one of the problems with so
many governmental powers that the great majority of people support.
Like the power to tax, the power to regulate is the power to destroy,
or at least the power to cripple, and when a governments' powers and
activities intertwine with virtually every area of life in one way or
another- as they inevitably do in any regulatory/interventionist
state- very little if anything is out of reach.
The right to have an abortion is
particularly vulnerable to this. It's an invasive medical procedure,
making it part of one of the most regulated sectors of the economy-
strict government regulation and licensing in the field of healthcare
ranks high among those things everybody within spitting distance of
the political mainstream mainstream “knows” is obviously
necessary. It requires a permanent facility for both production and
(for lack of a better word) consumption, and it's frequently done- as
is the case here- in specialized facilities, which makes it highly
vulnerable to attacks via zoning regulations. All of this makes it
vulnerable in a way many things large numbers of people would like to
restrict aren't. (There are certainly ways to interfere with or
discriminate against homosexuals while still nominally respecting
their right to sexual freedom, but making homosexuality de facto
illegal by driving all of the gay sex factories in your state out of
business with burdensome regulations is not one of them.) Given how
intensely controversial abortion is, it's unsurprising that there are
plenty of people ready to use the tools available to them.
It's a perverse irony that there's so
much overlap between people who support abortion rights and people
who wants to make the government's power to assail those rights even
stronger. If you think there are powerful forces arrayed against
women's ability to have an abortion now, what do you suppose
it would be like in a single-payer system where every abortion is
funded by the taxpayers, where people who want it restricted or
outlawed are outraged at not merely having to tolerate something they
consider murder but being forced to pay for it themselves every
single time it happens, where people who think abortion should be
legal but recoil at the notion of having any part of it themselves
are told that simple tolerance is no longer an option, where the
only source
of money for a legal abortion is a perpetual political battlefield
and comes with whatever strings Congress chooses to attach? As things stand now, making abortion inaccessible through legal channels nationwide would require a Supreme Court decision overturning a maor past decision or a constitutional amendment. Turn medicine into what many "progressives" want it to be, an arm of the state, and it gets a lot simpler.
