End run? Cuccinelli opines on abortion clinics
It was a busy week for Attorney General Ken Cuccinelli, losing his quest for climate change documents, asking Craigslist to yank adult ads, and issuing an equally controversial legal opinion on abortion.
"It was obviously a political maneuver," says Tarina Keene, director of the state chapter of an abortion rights group. Keene estimates that 17 out of the state's 21 abortion providers could not meet the stricter standards that Cuccinelli's opinion says the state could mandate. Currently, facilities for first-trimester abortions are classified as physician offices–- along with oral surgeons, eye doctors, and urgent care centers.
Keene, who runs NARAL Pro Choice Virginia, protests that other surgeries riskier than abortion, like cosmetic surgery, breast augmentation, and eye surgery, also fall under the "physician offices" category, which is regulated by the Board of Medicine. Outpatient hospitals are under the jurisdiction of the Board of Health.
"Abortion is very well regulated," she says. "This is sort of a slap in the face to the Board of Medicine."
When he was in the General Assembly, Cuccinelli tried–- unsuccessfully–- to pass legislation regulating abortion providers. But in his capacity as AG, when pro-life Delegate Bob Marshall asked for an official opinion on that matter, Cuccinelli determined that yes, the Commonwealth can regulate the facilities that provide first-trimester abortions, as well as the medical personnel who perform them.
"The Attorney General is trying to attempt to generate a regulatory fix to something the legislature has refused to do by law or by statute," says Planned Parenthood's David Nova.
Cuccinelli spokesman Brian Gottstein, however, disagrees and says issuing official opinions is part of the attorney general's job when a state agency or legislator requests it. "Official opinions are not the attorney general's personal opinions, but rather legal opinions," says Gottstein. "Issuing this legal opinion is not an 'end run' around anyone, because the law already says the state can regulate clinics."
Indeed, Planned Parenthood's Nova has long prepared for this moment. When Planned Parenthood constructed new clinics in Roanoke in 2000 and Charlottesville in 2004, they were built to the outpatient hospital specifications "out of concern that one day the legislature would require us to operate as hospitals," explains Nova.
That's not the case for Charlottesville Medical Center for Women, a Commonwealth Drive abortion provider, which declined to comment when contacted by the Hook.
"The Attorney General's opinion states the Commonwealth of Virginia has the legal authority to regulate abortion providers," says Nova. "Planned Parenthood agrees with that. Virginia has the authority and obligation to assure every medical facility operates professionally and safely."
Where he draws the line: If the Board of Health uses the Attorney General's opinion to restrict access to first trimester abortions. "The ruling in and of itself doesn't do anything," says Nova. "It doesn't say the state will do this. It says the state can do this."
John Whitehead at the Rutherford Institute weighs in with support of tightened restrictions on clinics, even if it means first-trimester abortions are more costly and send women to other states. "Though it may seem undesirable to have Virginians crossing state lines to undergo less costly abortions, this concern must be secondary to the health risks associated with the Commonwealth maintaining a laissez-faire attitude toward abortion clinic safety" he writes in a letter to state Senator David Marsden.
Virginia, cautions Whitehead, "must see that its clinics don't become the dreaded 'back alleys.'"
Actual examples of botched or risky abortions in Virginia were not produced and were not a factor in Cuccinelli's opinion. "It does not look at–- nor is it intended to look at–- specific instances of harm caused by a lack of regulation," says Cuccinelli spokesman Gottstein.
The next move is up to Governor Bob McDonnell, who appoints members of the Board of Health, the regulatory body overseeing outpatient hospitals. McDonnell also opposes abortion, but he's bucked Cuccinelli before when the attorney general opined that colleges didn't have the authority to prohibit discrimination based on sexual orientation.
"The Governor and members of the administration are currently evaluating and reviewing this opinion,” says McDonnell press secretary Stacey Johnson.
Over at the Board of Health, local appointee Willis Logan says at the moment, the opinion doesn't change anything, but he acknowledges that questions about the ruling are going to the governor's office, and that McDonnell has the final say on who makes up the Board of Health. Notes Logan, "I serve at the pleasure of the governor."
Updated 10:40am with John Whitehead's observations.