Attorney General Kenneth Cuccinelli refused to certify new abortion clinic regulations Monday, saying the Virginia Board of Health unlawfully stripped a hotly contested provision requiring clinics to meet the same strict architectural standards as new hospital construction.
Abortion rights supporters had vigorously opposed the provision, saying it would force most of the 20 clinics in the state that have applied for a license to close. The board’s 7-4 vote last month to exempt existing clinics from the requirement prompted a spontaneous celebration by critics of the regulations who had packed the meeting room after conducting a protest outside.
Senior Assistant Attorney General Allyson K. Tysinger had told the board that it lacked authority to grandfather in existing clinics, saying the law passed by the General Assembly requiring the regulations specifically mandated the tougher building standards. She reiterated that advice in a memo to state Health Commissioner Karen Remley.
“The Board does not have the statutory authority to adopt these Regulations,” she wrote. Because of the conflict between the amendment passed by the board and the state law, she said, “the Board has exceeded its authority.”
Katherine Greenier of the American Civil Liberties Union of Virginia called the action by Cuccinelli’s office “gravely disappointing.”
“The attorney general is wrong when asserting that the existing women’s health centers cannot be grandfathered in,” she said. “He’s using a forced interpretation of the law to advance an anti-choice political objective.”
Victoria Cobb, president of the anti-abortion Family Foundation of Virginia, said the board had fair warning about the limits of its authority.
“But there were some members of the board who decided to make a political statement rather than do their job,” she said. “The women of Virginia deserve safety in any medical situation, abortion included. The abortion industry should want to provide the best standards of care for their clients.”
Critics claim the regulations have never been about women’s health.
“These regulations are about playing politics with women’s health and shutting down access to reproductive health care,” Greenier said.
The action by the Republican attorney general does not, by itself, derail the regulations, which were imposed on an emergency basis while the regulatory process continues. However, it serves as the state’s official legal position as the rules make their way through the executive branch review. Ultimately, they will go to Gov. Bob McDonnell, another anti-abortion Republican, who can either approve them or send them back to the board with recommended amendments.
After the governor acts, the regulations go through another round of public comment, possible revisions by the Department of Health, another vote by the board and a second executive branch review before the regulations become final.
The regulations deal with a range of issues, including the types of equipment a clinic must have, staffing levels and periodic inspections by state officials. But the architectural standards, dealing with issues such as hallway widths and the size of treatment rooms, were by far the most controversial aspect of the regulations.
Molly Vick, who heads a group that was formed to fight the regulations, said existing medical facilities have always been grandfathered in when new regulations are adopted.
“The attorney general and the governor are clearly acting in concert to continue their longtime crusade to end access to abortion in Virginia,” she said.
Cuccinelli spokesman Brian Gottstein said in an email that the attorney general’s role is merely to advise whether the regulations comply with the law.
“We make that determination solely on a legal basis, not on the basis of whether we agree with the policy or not,” he said.
Pilot writer Julian Walker contributed to this report.