- The Washington Times - Sunday, September 16, 2012

RICHMOND — The Virginia Board of Health’s move to reverse a June decision and vote to adopt new regulations for abortion clinics in the state without exempting existing facilities delivered an immediate victory for pro-life groups, but long-term effects, both practical and political, are still far from clear.

The board in June voted 7-4 to “grandfather” existing facilities that perform five or more first-trimester abortions per month into compliance with new permanent rules, which mandate specific guidelines on items such as hallway width and operating-room sizes. The move shocked many conservative advocates of the new regulations, since temporary rules that did not exempt the state’s existing facilities were already in place.

But in a July memo, senior Assistant Attorney General Allyson K. Tysinger wrote to Department of Health Commissioner Karen Remley that the attorney general’s office would not certify the revised guidelines as part of the regulatory process, saying the board does not have the authority to adopt the amended regulations because they conflict with the legislation passed by the General Assembly last year that directed the board to promulgate the regulations in the first place.

“People changed their minds, and they were convinced by the arguments put forward by the attorney general about the appropriateness of the action taken by the legislature,” said Dr. James Edmondson Jr., one of two board members out of 15 to vote against the new regulations last week. “The legislature has sent us conflicting messages, and, to me, that’s going to have to be resolved in the courts, by the legislature itself. I have no idea what to expect over the next year or so.”

Democrats immediately tried to paint the board’s decision as the result of a power play by Republican Attorney General Kenneth T. Cuccinelli II and warned of electoral consequences in the future.

State Sen. Barbara Favola, Arlington Democrat, told supporters in a fundraising email sent through the Democratic Party of Virginia that the actions stretched beyond the state level.

“It’s about right-wing Republicans treating our government like a laboratory for radical and offensive policies, while Virginians look for work, sit in traffic and send their kids to overcrowded schools,” she wrote. “That’s what they’re doing in Richmond, and that’s what Mitt Romney, Paul Ryan and George Allen will do in Washington unless we stop them on November 6th.”

Meanwhile, state Sen. Mark R. Herring, Loudoun Democrat, reacted quickly to condemn the board’s decision. Mr. Herring has announced that he will run next year to replace Mr. Cuccinelli, who is running for governor.

“This episode only underscores the need for an attorney general who will take the politics out of the office and apply laws evenly,” Mr. Herring said.

For now, the regulations go back to Mr. Cuccinelli’s office for review and, if approved, to the desk of Gov. Bob McDonnell, a Republican. There would then be a 60-day public comment period before the board would have another opportunity to look at them in light of those comments.

“Whatever the decision, it will be determined solely on a legal basis, as was the decision on the prior version of the regulations — not on the basis of whether or not we agree with the policy,” Cuccinelli spokesman Brian Gottstein said.

Victoria Cobb, president of the Richmond-based Family Foundation, hailed the board’s decision — but also took a more long-term view in an email missive to supporters.

“While a major victory, the process to finalize these standards is not finished,” she wrote. “They must go through several more steps in the next several months, including two lengthy public comment periods. We will be contacting you and urging you to submit comments when the public comment is open, and it is crucial that pro-life Virginians make their voice heard once again.”

A memo sent to board members last week and obtained by the Virginian-Pilot said that if they are named in a lawsuit related to board actions taken, Mr. Cuccinelli’s office doesn’t necessarily have to represent them and can also decline the appointment of special counsel. Mr. Gottstein stressed, though, that when the law leaves him discretion, Mr. Cuccinelli’s personal position is to provide representation.

But board chairman Bruce Edwards attributed the change in votes to the fact that board members had more time to go back and study the issue — not because of any perceptions of pressure from the Attorney General’s Office.

“We tend to not think that way,” Mr. Edwards said. “We work through all of these issues in a systematic way, a methodical way, and come out with what we feel is the best for these patients.”

All 20 of the state’s clinics have applied for licensing, and 12 have been granted licenses after submitting plans to correct deficiencies ranging from corridors or doorways being too narrow or having inadequate hand-wash and service sinks, Dr. Remley said. None have indicated an intention to close.

Advocates have consistently argued that the new design regulations would be prohibitively expensive and could force the clinics to close.

But Chris Freund with the Family Foundation called that argument a “false choice.”

“They can stay open. They just can’t perform abortions,” he said, citing Planned Parenthood’s claim that only 3 percent of their patient care deals with abortion services.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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