Attorney General Ken Cuccinelli has threatened Board of Health members that they could be denied state legal counsel and have to pay for their own defense if they again disregard his advice about relaxing controversial abortion clinic rules and litigation ensues.
That warning is spelled out in a memo Wednesday from the Attorney General's Office – the lawyer for state agencies and boards – obtained by The Virginian-Pilot days before a board meeting to reconsider regulations for the licensure of clinics.
In recent weeks, it's also been conveyed to those who serve on the 15-person panel in sit-downs with top state health officials, according to some board members.
"I heard what amounted to, maybe not a threat, but a warning that there was a risk, exposure if we as a board acted outside our scope, our authority," board member James Edmondson of McLean said.
His account of that behind-the-scenes exchange is but one facet of the intense lobbying that's occurring in the lead up to Friday's meeting when the board is expected to revisit the abortion clinic regulations.
Meanwhile, the Family Foundation – the group supports more strict clinic regulations – has released state records it obtained showing a series of violations found during inspections at some South Hampton Roads clinics.
The regulations are back before health regulators after the staunchly anti-abortion Cuccinelli in July refused to certify board-approved standards to exempt existing clinics from meeting hospital-like architectural standards. He concluded the revisions adopted in June are in conflict with aspects of a state law modified in 2011 to impose new rules on clinics where at least five first-trimester abortions are done monthly.
Specifically, he determined the board had run afoul of a provision calling for regulations to include "minimum standards for the design and construction" of hospitals and nursing homes by excusing existing clinics from that requirement.
Clinic operators and abortion rights advocates reject that legal interpretation. They say a plain reading of the law shows that standard applies to the design of new health care facilities and should not be read as a way to force established clinics to undergo upgrades they estimate could cost $250,000.
Still others accused Cuccinelli of using strong-arm tactics to inject his political views into the regulatory process to influence its outcome.
"Every citizen of Virginia should stand up and say they will not tolerate this corruption," Dr. Kenneth Olshansky of Richmond said Wednesday on a conference call held by the Virginia Coalition to Protect Women's Health.
Like many critics of the regulations, Olshansky argues abortion is a safe procedure being singled out while other surgical practices where cosmetic and other invasive work is done have been spared from such oversight.
Yet abortion foes counter that clinics should have no fear of tighter regulations if abortion is as safe and clean as they say, a claim the Family Foundation sought to undercut with its release Wednesday of the inspection reports. They reveal issues observed by state inspectors who in May visited A Tidewater Women's Health Clinic in Norfolk and Virginia Beach's Planned Parenthood of Southeastern Virginia, among other locations.
Reported violations ranged from custodial practices and record-keeping to the storage of medical waste - one citation at the Norfolk facility highlighted leakage from "conception material" stored in a freezer.
Even with time to prepare for inspection, clinics had violations that Foundation president Victoria Cobb said "most reasonable Virginians would deem unsafe in many cases and utterly disgusting in others."
Dr. David Peters, medical director at the Norfolk clinic, characterized each of the violations as minor issues. He said they were satisfactorily corrected - an increased frequency of medical waste pickups was one remedy - and his facility has been licensed by the state.
And like it or not, he added, medical waste is a byproduct of operating any health care facility.
"It is a nice, gory detail that these people have... to scare people," Peters said of the Family Foundation release.
State statistics indicate more than 25,400 pregnancies were terminated in Virginia last year.
And according to health officials, 20 Virginia abortion clinics have been surveyed and 11 have been licensed, four of them in South Hampton Roads.
Each is licensed under temporary regulations previously put in place that include language requiring clinics to meet hospital design standards for operating-room size, hallway widths and such, though they have time to comply.
The regulations now under consideration would become permanent once finalized, which requires sign-off from Cuccinelli and Gov. Bob McDonnell. That process hit a snag in mid-July when Cuccinelli rejected a key board provision to excuse existing clinics from meeting new building standards.
Edmondson and fellow board member H. Anna Jeng of Norfolk, the pair that led the push to amend the regulations in June, both said they remain resolute that they acted properly and will urge their colleagues to affirm the previous decision Friday.
But board chairman Bruce Edwards of Virginia Beach, who favors the new structural standards, said he's inclined to follow Cuccinelli's guidance, a lesson gleaned from a lengthy tenure in local government.
"I've learned a long time ago that if the attorneys advise me to do something in a certain way, that's the way I do it," he said.