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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.

Marshall wrote a letter to Gov. Robert F. McDonnell (R) on Monday, asking him to implement the regulations per Cuccinelli's opinion.

"This is a victory for women and children across Virginia," Marshall said Monday. "We should do everything possible to ensure that every woman's life and health and their future pregnancies are protected by the Commonwealth of Virginia. To do otherwise is to shirk from government's first responsibility."

McDonnell spokesman Tucker Martin said the administration is reviewing the opinion. "The governor is a long-standing supporter of ensuring that abortion clinics, and their medical personnel, are treated equally with other outpatient surgical hospitals by the commonwealth to ensure services are provided in a safe manner," he said.

McDonnell is expected to fill the board's vacancies in the coming days.

"The vast majority of Virginians want to see abortions performed in a safe way," said Victoria Cobb, president of the conservative Family Foundation of Virginia, who added that she would be pushing for the Board of Health to begin regulating the clinics.

Board members' reaction

Some board members said they have heard about the opinion and look forward to discussing it. Regulatory changes to the Board of Health generally take up to two years to implement after public hearings and consultation with the governor's office and secretary of health.

"Recognizing the right of women to make life choices in keeping with their conscience or religious beliefs, legislators in Virginia's General Assembly have in the past refused to place burdensome regulations on abortion clinics," board member Anna Jeng said. "As a member of the Board of Health, I shall act to uphold that tradition and protect a woman's right to choose."

Another board member, James Edmondson, said he did not know what the panel would do. "I'm never surprised by the things that Mr. Cuccinelli does," he said.

The Board of Health regulated abortion clinics from 1981 to 1984, when former governor Charles S. Robb (D) ended the practice, according to the opinion.

Efforts in the legislature

For at least eight years, anti-abortion legislators -- including Cuccinelli when he was a senator -- supported bills that sought to treat abortion clinics as ambulatory surgery centers and require that they meet hospital-type regulations. They failed year after year.

The Board of Medicine regulates the doctors who perform abortions, but the clinics undergo fewer regulations.

"The state has long regulated outpatient surgical facilities and personnel to ensure a certain level of protection for patients," Cuccinelli spokesman Brian Gottstein said. "There is no reason to hold facilities providing abortion services to any lesser standard for their patients. Even pharmacies, funeral homes and veterinary clinics are regulated by the state."

Critics of Cuccinelli, who opposes abortion, accuse him of issuing the opinion after he was unable to get the bills passed in a divided legislature. "He's trying to do an end run around the General Assembly," said Del. David L. Englin (D-Alexandria), who fought the bill in the House. "He's trying to create law, and the Virginia Constitution doesn't give him that authority."

But Sen. Stephen H. Martin (R-Chesterfield) said Democrats just don't like Cuccinelli's opinion.

"It appears to me, in these instances, he is giving his opinion. That's all he can do," Sen. Stephen H. Martin (R-Chesterfield) said. "They may disagree with him. They have a right to disagree with him."

Gottstein said opinions do not create law. "Instead, the opinions represent the attorney general's analysis of the current state of the law based on his thorough review of existing law and relevant prior court decisions."

But Kent Willis, executive director of the Virginia branch of the ACLU, said Cuccinelli's opinion signals a shift in the reproductive rights debate in Virginia from the General Assembly to health regulatory agencies.

"Legislators have consistently rejected burdensome regulations on clinics as unnecessary and expensive and as a potential violation of reproductive rights," he said. "If reason and professional medical judgment can prevail in the General Assembly, we are hopeful, even optimistic, they will also prevail at the Board of Medicine and the Board of Health."

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