But former Health Commissioner Karen Remley said Mr. McAuliffe consulted her on the issue of the clinics and that there is a way to keep the facilities open without the board and without going to the General Assembly.
The power effectively would lie with Mr. McAuliffe through the health commissioner he selects, said Dr. Remley, who was appointed by Gov. Tim Kaine, a Democrat, and reappointed by Gov. Bob McDonnell, a Republican.
The health commissioner has the ability to issue waivers when the board is not in session for everything from restaurant owners to people digging wells who can demonstrate “undue hardship” as a result of regulations, Dr. Remley said.
But a second way would be to have the governor or the health commissioner reinterpret the sources from which the board drafted the regulations, she said.
She gave a hypothetical example of a hallway width requirement of 60 inches and a facility where the halls are 58 inches wide.
“Rather than have arbitrary, rigid restrictions, these inspectors should have guidance documents that allow them to thoughtfully apply” which ones are relevant, said Dr. Remley, who resigned in October citing the new regulations.
“A lot of the confusion in the political world is that it’s an all-or-none,” she said. “The current attorney general interpreted them to be black and white. That was his advice, not necessarily the law. I think there is a solution that finds the middle of the road.”
Mr. Gottstein disagreed, saying the language in the regulations is “clear and unambiguous.”
“Since regulations have the force of law, an agency cannot give ‘guidance’ that contradicts or supersedes them by giving discretion to approve facilities that aren’t in compliance with those guidelines,” he said.
The bill that set into motion the process of developing the regulations passed in 2011 and was one of the most contentious pieces of legislation the General Assembly has considered in recent years.
Opponents say the standards were intended to shut down most of the state’s abortion clinics, while sponsors say the guidelines were meant to make facilities that perform five or more abortions per month safer for women.
The conservative Family Foundation, citing results from open-records requests, pointed to dozens of health and safety violations found at centers in the state. The reports included mentions of dried blood found on a procedural table and infractions for the way clinics stored and dispensed drugs.
The Board of Health passed emergency guidelines that did not exempt existing facilities in the fall of 2011 but bucked advice from Mr. Cuccinelli’s office last year and passed permanent regulations that did exempt existing facilities already in operation from the most strict regulations. The attorney general’s office reportedly suggested it would not defend board members if their decision was challenged, however, and members subsequently reversed their decision.
If the new attorney general disagreed with Mr. Cuccinelli’s interpretation, Ms. Remley said, “then that attorney general would have to clearly say that it’s illegal to interpret the guidelines not as they are written.”
“If the health department says, ‘This would guarantee safety,’ I think the prudent Virginian would say, ‘That makes sense,’ ” she said.