Virginia can impose tougher abortion clinic oversight, AG Cuccinelli says

At 42, Virginia's Ken Cuccinelli stands as one of the most high-profile, active attorneys general in the state's history.
By Anita Kumar
Tuesday, August 24, 2010

RICHMOND -- Virginia Attorney General Ken Cuccinelli II has concluded that the state can impose stricter oversight over clinics that perform abortions, a move immediately decried by abortion-rights organizations and others as an attempt to circumvent the General Assembly, which has repeatedly rejected similar measures.

Cuccinelli's legal opinion empowers the Board of Health, if it chooses, to require the clinics to meet hospital-type standards. Abortion-rights advocates say that could force some clinics to close because they would be unable to afford to meet the new requirements.

"It is my opinion that the Commonwealth has the authority to promulgate regulations for facilities in which first trimester abortions are performed as well as providers of first trimester abortions, so long as the regulations adhere to constitutional limitations," Cuccinelli (R) wrote in his opinion, released Monday.

Cuccinelli declined to be interviewed, but his spokesman said in a statement that the regulations must comply with Roe. v. Wade.

Abortion-rights advocates said they are not surprised by Cuccinelli's decision and predicted that if the Board of Health acts on his opinion, the regulations could prompt the shutdown of 17 of the state's 21 clinics performing abortions.

"We've been waiting for the attorney general to take on abortion providers, and it looks like this is his first pitch," said Tarina Keene, executive director of NARAL Pro-Choice Virginia. "These so-called regulations are only an attempt to shut down abortion clinics in the Commonwealth of Virginia."

It's unlikely that any changes would occur soon. The 15-member board is appointed by the governor. Eleven board members were named by former governor Timothy M. Kaine (D), and there are four vacancies.

In his seven months in office, Cuccinelli has sued the federal government over new health-care rules; waded into the national immigration debate, saying law enforcement can ask about immigration status; and launched an investigation into whether a former University of Virginia professor and climate scientist manipulated data to reach his conclusions about global warming.

"It is frightening to think of what Cuccinelli will do next," said Del. Adam P. Ebbin (D-Alexandria), House minority whip. "The public needs to understand how reckless he is. He is not working on what is important to Virginia consumers. Instead, he is focusing on his own extreme ideology."

Details of the opinion

In his legal opinion, Cuccinelli concluded that the Board of Health, which regulates hospitals and nursing homes, has the authority to write new regulations requiring that doctors who perform abortions at the clinics hold hospital privileges, counselors have professional training and buildings undergo structural changes. The legal opinion is not binding, and the board must decide how to proceed.

Cuccinelli's opinion was a response to requests from Del. Robert G. Marshall (R-Prince William) and Sen. Ralph K. Smith (R-Roanoke), who asked whether the state has the authority to regulate facilities that provide first-trimester abortions and the medical personnel who perform them. The opinion applies only to first-trimester abortions. Second- and third-trimester abortions are performed in hospitals.

Smith did not return phone calls seeking comment. But in a statement, he said, "This opinion clarifies any legal questions on the issue and sets the stage for regulating abortion clinics like other medical facilities."

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