In race for Virginia attorney general, abortion debate takes on greater intensity

June 25, 2013

The fight over abortion has taken on a greater intensity in this year’s race for Virginia attorney general as the two candidates clash over legislation that died in the General Assembly four years ago.

Democrat Mark R. Herring, a state senator from Loudoun County, has seized on a measure his Republican opponent, Mark D. Obenshain, proposed in 2009 — which would have required women to report miscarriages to police — as an example of government going too far.

Herring has described the Harrisonburg state senator as one-third of a Republican statewide ticket that is too “extreme” for Virginia.

“He knows that when voters learn the truth, they will never support him,” Herring said.

“This is the kind of legislation that he wants people to try to not see.”

But Obenshain countered that the legislation did not come close to becoming law because he pulled it from consideration, and he said Herring was using the bill as a distraction from economic issues.

“The way it’s being framed is it is an accusation that it is what I wanted, when, in fact, because of the way it was going to work, I demonstrated that it was not what I wanted by striking it,” Obenshain said.

The debate on the legislation’s details underscores the importance of the attorney general’s office — often a final arbiter of new regulations and a launching pad to the governor’s mansion.

The dispute continues to swirl amid revelations that Republican lieutenant governor nominee E.W. Jackson concluded that Planned Parenthood has been worse for African Americans than the Ku Klux Klan and attacks by Democratic gubernatorial candidate Terry McAuliffe, who has called on the GOP to stop its “attack on women,” a reference to legislation last year that would have required transvaginal ultrasounds before abortions.

Obenshain, who is on a statewide ticket with Jackson and gubernatorial nominee Ken Cuccinelli II that opposes abortion, said he proposed the legislation at the request of a constituent and cast the miscarriage-reporting requirement as an unintended consequence.

Commonwealth’s Attorney Marsha Garst said she asked Obenshain for the bill in response to a 2008 case in which a woman said her child was stillborn and threw the body in the trash.

The body was not found, and authorities could not confirm the woman’s story.

“It was frustrating,” Garst recalled. “There was no way to prove whether, indeed, her contentions were true. And there was never anything to disprove it. Anybody could say their baby was stillborn and dispose of a live child. . . . To prove foul play, you need a body. That was the goal in speaking with Mr. Obenshain.”

Obenshain said that his intent was to protect newborns but that when he saw a draft of the proposal ahead of the legislative session, he knew it was “clearly flawed and over-broad.”

He said he withdrew the bill after being unable to revise it.

But Herring said the bill is part of a pattern reflecting what he called Obenshain’s “radical position at the expense of Virginia women.”

He questioned Obenshain’s motives for filing the legislation and said Obenshain is misrepresenting his reasons for killing the bill.

Obenshain denies that he intended to require women to report miscarriages to law enforcement officials.

Herring has referred to the bill on the campaign trail, and a recent fundraising e-mail read: “Obenshain actually passed a bill that would make criminals out of women who had miscarriages if they didn’t immediately report it to police!”

However, the legislation never reached a vote in the General Assembly.

“I saw that, and that should have been he ‘tried to pass it.’ It did not pass,” Herring acknowledged Monday.

Herring campaign spokesman Kevin O’Holleran confirmed the mistake and said the campaign would be “accurately stating” what happened with the legislation in the future.

Women’s reproductive health has been among the social issues that dominate debate in Old Dominion politics.

Republicans seeking statewide office such as Gov. Robert F. McDonnell and former governor and U.S. senator George Allen — both social conservatives — were able to broaden their appeal by focusing their message on bread-and-butter issues that mattered to a larger swath of the state’s electorate.

Obenshain co-sponsored with Cuccinelli — a former state senator who is the attorney general — “personhood” legislation that would have given rights to unborn children. Obenshain, who has served in the Senate since 2004, voted for the failed transvaginal ultrasound measure in 2012.

The impact of Herring’s attacks is unclear, but some observers say social conservatives like Obenshain have won in Virginia when they are perceived not to be pursuing a social agenda.

“It strikes me as a good strategy on their part to emphasize that part of his record,” said Mark Rozell, a political scientist at George Mason University. “He wants to say law and order all day long. The plain fact is, he may have to make decisions that have significant consequences on exactly these types of issues.”

Errin Whack covers Virginia politics for The Washington Post, including the commonwealth’s General Assembly and the 2013 gubernatorial race.
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