New abortion clinic rules for NC still a long way off

cjarvis@newsobserver.comDecember 13, 2013 

— More than four months after a sweeping abortion-regulation bill was signed into law, the new rules it requires for certifying clinics are still a long way from being written.

Anticipated with dread by abortion-rights groups and with optimism by anti-abortion advocates, the rules could put some clinics out of business if they are written stringently enough. Most likely, the struggle to balance opposition to abortion with legitimate medical concerns will return to the General Assembly for a final decision.

State health regulators are in the early stages of coming up with the rules and say it’s too soon to estimate when the process will be finished – even whether it will happen any time next year.

The state Department of Health and Human Services is required by the new law to give legislators a progress report by the first of the year. But there won’t be a lot to report by then.

“We’re not there yet,” Drexdal Pratt, director of the Division of Health Service Regulation, said Thursday. “We’re still working on trying to pull this together and still getting feedback. … It’s a work in progress.”

Pratt said the division is following the normal procedure for when state agencies develop rules to implement laws that are enacted. He said that includes his staff drafting possible rules with input from different interest groups and experts, making sure the proposals comply with the law.

One of the stakeholders the division has been in contact with is Planned Parenthood, which runs a number of abortion clinics in the state, according to Paige Johnson, vice president of external affairs for Planned Parenthood of Central North Carolina.

Abortion-rights advocates criticized the bill when it was passed in the legislature and signed by the governor in July. But Johnson said the organization was encouraged to be part of the process early on.

“We have always welcomed the opportunity to speak to them as experts on women’s health, and we appreciate the opportunity of being included,” she said.

Tami Fitzgerald, executive director of the N.C. Values Coalition, said her anti-abortion organization had not been contacted yet.

“We would hope these groups DHHS seeks input from would reflect a balance of both sides of the issue,” she said.

The law’s requirements

Pratt said staff in the section working on the project also has to develop other rules that the General Assembly required with a higher priority. The abortion clinic rules did not come with a deadline.

“I’d be afraid to commit to any time frame,” Pratt said. “We’re working pretty aggressively.”

The new law gives the state the authority to regulate clinics as stringently as same-day surgery centers but doesn’t require it. Regulators can use surgery center standards that are “applicable.”

The law also requires five other things, which Pratt said will form the basis of the rules: ensuring protection of patients during recovery, protecting privacy, providing quality assurance, making sure patients with complications receive necessary medical attention, and not unduly restricting access.

Back to legislature?

The law allowed DHHS to write temporary rules – which could be enacted without public hearings – but Pratt said the division instead is working on permanent rules, which take longer. A recent change in law requires legislative staff to analyze both temporary and permanent rules, so there is less incentive to go the temporary route.

Permanent rules require the Rules Review Commission to hear from the public. Then if there are at least 10 objections – which is expected with a controversial law – the rules go to the General Assembly for further consideration.

Federal case law prevents states from outright banning abortions or from making them too difficult to obtain. Some states, notably Texas, are testing the limits of what restrictions are permissible.

Also in play is Gov. Pat McCrory’s campaign promise not to further limit access to abortions. He contends the new law does not impose new restrictions, but abortion-rights groups say he went back on his promise.

Politics and women

Both sides say whatever rules are enacted should be about women’s health.

“We continue to believe that abortion clinics should be held to the same standards other surgical facilities abide by,” Fitzgerald said. “Since they came into being they’ve been given a pass.”

She said the rules need to be updated to make sure the procedure is safe, and should go beyond the new law to require doctors remain on hand during the recovery phase, that they have hospital admitting privileges nearby, and that there be patient transfer agreements between clinics and hospitals.

“The current abortion clinic rules need significant improvements and reforms to guarantee patient safety during and after the procedure,” Sen. Warren Daniel, a Republican from Morganton and key abortion opponent, said Wednesday. “I am confident that the department will carry out the legislative intent of SB 353, and I am committed to ensuring that they do so.”

Suzanne Buckley, executive director of NARAL Pro-Choice North Carolina, said the new rules should not be about ideology.

“We believe it’s time for North Carolina lawmakers to stop playing politics with women’s health,” Buckley said. “Secretary (Aldona) Wos’ job is to ensure the health, safety and well-being of all North Carolinians, not to promote a political agenda.”

Earlier this year, the state suspended the operations of three abortion clinics, prompting one of them to close permanently, under the current rules.

Sixteen clinics in the state provide abortions. Only one of them is a licensed ambulatory surgical center, Femcare in Asheville, which was one of the clinics sanctioned this year. There are hundreds of surgery centers, which provide a wide range of services and are licensed by the state.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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