RICHMOND — Virginia Attorney General Mark R. Herring (D) sided Monday with abortion rights advocates seeking to free clinics from strict, hospital-style building standards, issuing a legal opinion that reopened debate on the polarizing issue.
Herring’s action reverses an opinion from his Republican predecessor, Ken Cuccinelli II, and put an issue that has long divided lawmakers back on the front burner.
The advisory opinion has no immediate effect on clinics currently operating, but it could influence the state Board of Health when members consider an overhaul of rules. On June 4, the board will review rules that require the commonwealth’s 18 existing abortion clinics to widen hallways, add parking spaces and make other costly building renovations.
Abortion rights groups say those changes are a blatant attempt to close clinics and reduce access to abortion in Virginia, while abortion opponents say the rules are needed to ensure safety for women and access for emergency personnel.
The review comes a year after Gov. Terry McAuliffe (D) urged the board to reconsider controversialregulations adopted under former governor Robert F. McDonnell (R).
Monday’s opinion “supersedes and reverses incorrect advice” given to the Board of Health in 2012 by Cuccinelli, Herring spokesman Michael Kelly said. Democrats accused Cuccinelli of bullying the board into forcing existing clinics to conform to the rules.
“Despite what the previous attorney general claimed, nothing in the law requires or even authorizes the Board to apply these design and construction standards retroactively,” Herring said in a statement. “Without his interference, the Board would have done what it has always done which is apply these standards to new facilities, not preexisting ones. This opinion corrects the previous administration’s incorrect advice and helps restore the integrity of the regulatory process, which should be used to ensure the health and safety of Virginians, not as cover to pursue ideological agendas.”
Herring’s action angered conservative activists, who said the move fits the attorney general’s pattern of subverting laws he does not agree with.
Since taking office in January 2014, Herring and McAuliffe have bucked lawmakers on same-sex marriage and immigration.
“[I]t’s not surprising that the Attorney General is inserting his political agenda by ignoring the will of the legislature,” Victoria Cobb, president of the Family Foundation of Virginia, said in a statement. “He has proven time and again that he believes he is not bound by the law.”
Del. Robert G. Marshall (R-Prince William) said he agreed that the move was an end run around the legislature, adding: “Now he’s saying, ‘Screw you,’ again.”
But Herring accused Cuccinelli of bending the law to his political agenda when he advised board members against grandfathering existing clinics.
“We welcome the correction of that deeply flawed legal analysis that resulted in the imposition of medically unnecessary and financially burdensome requirements that would drive abortion providers out of business,” said Kathy Greenier, director of the ACLU of Virginia’s Reproductive Freedom Project.
In May 2014, McAuliffe moved to free the clinics from hospital-style building codes, loading up the Board of Health with supporters of abortion rights and calling for a review of rules that clinic operators say threaten to put them out of business.
As part of that review, Health Commissioner Marissa Levine — a McAuliffe appointee — asked Herring for the advisory opinion.
She previously recommended amending the construction and design rules; better aligning rules for drug storage and dispensing with state code; and improving standards for medical testing, lab services, emergencies and anesthesia. She also said rules concerning parental consent required before an abortion should be clarified.
The Board of Health is expected to vote June 4 on the proposed rules in a showdown likely to draw out passionate advocates on both sides of the issue. The vote will trigger a review by McAuliffe and Herring as well as a 60-day public comment period culminating in a final vote sometime this fall.
The issue has a contentious history in Virginia. In early 2011, the General Assembly voted for, and McDonnell approved, a law that categorized facilities that perform five or more abortions a month as hospitals.
As a result, the Health Department produced temporary rules imposing strict building standards on all clinics. The rules went into effect Jan. 1, 2012.
In producing a permanent set of rules, the Health Board voted to grandfather in existing clinics under the old standards — but in September 2012, it reversed itself after Cuccinelli told board members that he believed they overstepped their authority and that he would not defend them from potential litigation. The permanent rules took effect in June 2013.
After the initial legislation passed, one clinic decided to stop offering abortion services. Two others closed their doors last year.
Of the remaining 18 clinics, 13 have been granted more time to comply with the rules. Five clinics are complying with the architectural standards as written.