- The Washington Times - Wednesday, September 18, 2013

Democrat Terry McAuliffe is telling supporters that as Virginia governor he would issue a “guidance opinion” that would exempt existing abortion clinics from complying with strict new health and safety standards. The only problem: State officials say there is no such thing as a guidance opinion and that governors have no such formal authority.

Mr. McAuliffe said last week that he plans to take the action to keep 18 remaining centers open after abortion clinics in Fairfax City and Hampton Roads announced that they would shut their doors as a result of the standards.

He said that just one of the centers that remains open meets the requirements and they all would close if he doesn’t act.

“But I will issue what’s called a guidance opinion by mid-March,” he said in a video captured and distributed by Women Speak Out Virginia, an affiliated political action committee of the national Susan B. Anthony List. “I can give a guidance opinion to the Board of Health to grandfather in those remaining clinics to keep them open. That’s why this election is so important, and I will do that.”

However, multiple current and former state officials, both Democrat and Republican, say they are unaware of any formal power of the governor’s office to issue something like that to the Board of Health, which approved the regulations.

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Published reports this year indicate that all the remaining abortion clinics were granted temporary licenses last year giving them two years to remain open and meet the new requirements, although pro-choice groups have said the necessary renovations are prohibitively expensive.

The standards call for such things as mandatory inspections of facilities and include provisions on staff training, sanitation requirements and hospital-type construction codes.

Hillcrest Clinic in Hampton Roads was the only clinic to indicate that it won’t be seeking renewal, the Virginian-Pilot reported earlier this year. NOVA Women’s Healthcare in Fairfax announced that it was closing in July.

Regardless, lawyers in the office of Attorney General Kenneth T. Cuccinelli, Mr. McAuliffe’s Republican opponent for governor, said they were not familiar with anything called a guidance opinion that can be issued by a Virginia governor.

“Moreover, the governor does not have the power to issue an edict to ignore a law passed by the General Assembly,” Cuccinelli spokesman Brian Gottstein said.

In fact, the phrase “guidance opinion” appears nowhere in Virginia code or in the state Constitution.

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Maribeth Brewster, a spokeswoman for the Virginia Department of Health, said she cannot recall the board ever receiving a guidance opinion from a governor.

The board could receive different legal advice on the extent of the regulations, though that power would lie with the attorney general and not the governor.

The issue emerges amid a series of stumbles that Republicans have seized upon involving Mr. McAuliffe’s lack of experience in elective politics. Earlier this year, the Democrat told the Virginian-Pilot he wasn’t sure whether he could name the positions in the governor’s Cabinet. Members of the Northern Virginia Technology Council’s political arm told The Washington Post last week that he came across as “uninformed and superficial” in the interview for the group’s endorsement.

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.

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

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