S. Carolina law gives glimpse of new abortion clinic rules

RICHMOND

Virginia's continuing debate over abortion has turned to the south - as in South Carolina.

When Virginia Attorney General Ken Cuccinelli issued a legal opinion this month that the state can regulate first-trimester abortion providers, he invoked a federal court ruling that upheld a South Carolina law requiring abortion clinics to meet hospital-like standards.

Abortion rights supporters swiftly attacked Cuccinelli's position as a legal theory designed to give anti-abortion advocates an avenue to bypass the legislative branch and further limit women's access to abortion providers.

Both sides point to South Carolina to bolster their arguments.

Cuccinelli, who is anti-abortion, and other like-minded advocates contend clinics should be held to certain health and safety standards. Clinic conditions were enhanced in South Carolina, they said, and abortions still occur there, albeit less frequently.

In his Aug. 20 opinion, Cuccinelli wrote that a Virginia regulatory body such as the Board of Health or Board of Medicine has the authority to craft similar regulations under the state's broad power to protect public welfare.

"The state has long regulated outpatient surgical facilities and personnel to ensure a certain level of protection for patients," said the attorney general's spokesman, Brian Gottstein. "There is no reason to hold facilities providing abortion services to any lesser standard for their patients."

Critics of the decision see it as nothing more than a new strategy to curb abortions.

Adoption of new rules would require clinics to make costly improvements and force some to close, predicted Tarina Keene, executive director of NARAL Pro-Choice Virginia, thereby "eliminating women's access to abortion and other services, such as birth control and cancer screenings, that these medical facilities provide."

Some abortion-rights advocates say that's what happened in South Carolina after an amendment to state law was enacted in 1995 that created tougher regulations, which later withstood a federal court challenge.

Statistics show that abortions performed in South Carolina have declined over the past two decades, particularly since the law changed.

Less clear is how much the trend can be attributed to the stricter regulations.

South Carolina figures show that abortions dropped from nearly 10,000 procedures in 1995, the year the law was enacted, to fewer than 7,000 in 2002, before rising again from 2006 through 2008, the last year for which data are available.

A direct, scientific connection can't be drawn between "the dramatic decline of abortions" in the state and the passage of the law, but "there is a correlation," concluded Holly Gatling, executive director of South Carolina Citizens for Life.

Critics consider South Carolina's statute a so-called TRAP law - an acronym for "targeted regulation of abortion providers" - that opponents say holds clinics to a double standard in an attempt to run them out of business.

"There's just really no reason to treat abortion providers different than other physicians doing procedures in their offices with similar or more risk than an abortion," said Janet Crepps, deputy director for the U.S. legal program with the Center for Reproductive Rights, which also worked on a challenge to South Carolina's law.

Gatling counters that the state's laws "aren't putting any burden on women."

"These laws are requiring abortionists to meet generally accepted standards of medical practice, which for some reason, they don't want to," she said.

Virginia requires licensing of hospitals and some other medical facilities. Abortion clinics, physician and dental offices and plastic surgery centers are in a different category, though doctors who work in those settings must be licensed. Abortions after the first trimester must be performed in a hospital setting.

In addition to the number of procedures in South Carolina, the number of providers appears to have dropped, too.

Between 1996 and 2005, the number of clinics in the state declined from 14 to six, according to a 2008 study by the Guttmacher Institute, a research and public policy organization with an abortion-rights perspective.

Current state figures list just three licensed abortion clinics in the state, a number that hasn't changed "in quite some time," said Adam Myrick of the South Carolina Department of Health and Environmental Control, who expressed uncertainty about the source of Guttmacher's numbers.

Virginia abortion-rights advocates count 21 clinics in Virginia. They worry that number could drop if regulations like South Carolina's are adopted here.

With that in mind, several Planned Parenthood facilities built in Virginia in recent years have been designed to meet some hospital standards in advance of any potential new mandates.

Pregnancies terminated in Virginia between 1995 and 2008 ranged from about 25,000 to 27,000 annually, with some of the higher numbers occurring in recent years, the Virginia Department of Health reports.

Virginia's experience, however, isn't necessarily indicative of national trends.

The Guttmacher study reports a decline of more than 300,000 procedures nationwide, from more than 1.5 million in 1992 to just above 1.2 million in 2005.

The study also found a drop in the number of providers during that period, from nearly 2,400 to about 1,800.

Meanwhile, a growing number of states have updated their laws to require counseling prior to abortions, waiting periods, parental consent and notification when minors seek abortions and inspection of ultrasound images before a procedure.

And recent polling data from Gallup suggest a slight majority of Americans consider themselves anti-abortion, a theme that emerged last year for the first time in the more than a decade that the survey firm has sampled attitudes about abortion.

That reflects changing attitudes about abortion, particularly among young adults, said Virginia Family Foundation President Victoria Cobb, who credits some of the shift to the "tremendous difference in the legal atmosphere for abortions in states today than there were 10 years ago."

But those changes sometimes come incrementally, a reality anti-abortion Gov. Bob McDonnell acknowledged when he told reporters that regulatory changes can take a year or more to be vetted and approved.

Another potential challenge for the McDonnell administration if it pushes for new regulations - aside from a Democrat-controlled state Senate that has quashed similar initiatives - is a state Board of Health composed of appointees by past Democratic governors, including several whose terms don't end for another year or two.

Julian Walker, (804) 697-1564, julian.walker@pilotonline.com