Virginia can impose tougher abortion clinic oversight, AG Cuccinelli says

By Anita Kumar
Tuesday, August 24, 2010; A01

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."

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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