by Chris Lewis, legal intern:
On Monday, Attorney General Ken Cuccinelli announced that his office would not certify the regulations for first-trimester abortion providers passed by the Board of Health in June. In a memo sent to Health Commissioner Karen Remley, Mr. Cuccinelli claimed that the board overstepped its authority by inserting a “grandfather clause” that exempted existing facilities from the onerous regulations forced through by anti-choice activists. However, there is nothing in the law that supports Mr. Cuccinelli’s interpretation, and this is yet another example of the Attorney General using his position to advance his anti-abortion crusade.
The Office of the Attorney General has two responsibilities with regard to the adoption of regulations in Virginia. The first is to serve as that agency’s counsel and provide legal advice during the promulgation of new regulations. The second is to certify that those regulations are within the agency’s authority. In no way should the Attorney General’s personal feelings on matters of policy come into play. The job of the Virginia General Assembly and the various state agencies is to enact policy. The job of the Attorney General is to provide legal advice to those entities. If Mr. Cuccinelli wants to have a say in rule-making, he should have never left the state Senate.
The Attorney General claims that the law requires that all clinics must meet the new regulations. However, Senate Bill 924–which classified abortion clinics as hospitals subject to regulation–does not include this requirement. It merely adds clinics to the list of facilities that are subject to regulation by the Board of Health. The law leaves it to the board (comprised mainly of medical professionals) to use their expertise and knowledge to craft rules that will best serve the Commonwealth. Using this discretion, the board amended the regulations to include only new and renovated facilities, a move that brought the regulations closer to the intent of the experts who wrote the building guidelines as well as keeping with precedent.
Mr. Cuccinelli’s move flies in the face of previous building regulation in Virginia. Typically, all existing facilities are “grandfathered” in and are not subject to new rules. In fact, the Attorney General’s representative at the June meeting admitted that new regulations have never been applied to already-constructed buildings. With neither the law nor precedent supporting his move, Mr. Cuccinelli is clearly taking an activist position and acting solely in the interest of his personal politics.
With the refusal to certify, the regulations will return to the Board of Health to be addressed again – mostly likely in September. Be sure to contact the board members to encourage them not to submit to political pressure and to once again put medical science and women’s health ahead of personal politics. You can find out more information and many ways to take action at the Virginia Coalition to Protect Women’s Health website.