- The Washington Times - Tuesday, January 7, 2014

Outgoing Virginia Attorney General Kenneth T. Cuccinelli II has issued an advisory opinion saying Gov.-elect Terry McAuliffe does not have the legal authority to follow through on a controversial pledge to keep open some Virginia abortion clinics slated for closure.

Mr. McAuliffe, a Democrat who defeated Mr. Cuccinelli in the governor’s race and is scheduled to be sworn in Saturday, said on the campaign trail he would issue what he called a “guidance opinion” that would exempt existing abortion clinics from complying with strict new health and safety standards. The claim baffled political observers, who said they had never heard of such a mechanism and noted that a governor has no such authority.

In response to a request for an advisory opinion from Delegate Robert G. Marshall, the Republican attorney general wrote that the “Virginia Constitution prohibits the Governor from unilaterally suspending the operation of regulations that have the force of law.”

“It is simply beyond a Governor’s power to do so, and any such attempt is void,” he wrote in an opinion dated Friday and first reported by Watchdog.org’s Virginia bureau.

Mr. Marshall, Prince William Republican, sought the legal opinion after Mr. McAuliffe said in September that he planned to take action to keep 18 abortion clinics open. Centers in Fairfax City and Hampton Roads announced they would shut their doors as a result of stricter standards.

“But I will issue what’s called a guidance opinion by mid-March,” Mr. McAuliffe said at the time. “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.”

SEE ALSO: Terry McAuliffe vows to use mysterious ‘guidance opinion’ to help Virginia abortion clinics

Mr. Cuccinelli said that a governor attempting to undercut an agency’s administration of regulations mandated by the General Assembly would amount to a violation of the separation of powers. He said a guidance opinion from the governor “is not legally sufficient to effectuate a change in or suspension of a validly enacted regulation.”

Mr. Marshall applauded the decision, for both its political and its legal implications.

“McAuliffe is violating both the letter and the spirit of the foundational documents of our commonwealth and our country,” he said. “You can’t do this just on a whim.”

The attorney general in a footnote also outlined the statutory basis for the “guidance document,” which he said, “as properly understood, only may explain or amplify the relevant regulation or statute.”

“Definitionally, suspending the operation of a regulation would neither explain nor amplify the regulation, but rather, only subvert it,” he said.

The advisory opinion was issued days before Mr. McAuliffe is sworn in Saturday and Mr. Cuccinelli leaves office. Democrat Mark R. Herring assumes the attorney general position next week.

“The outgoing Attorney General’s opinion is not surprising,” Herring transition spokeswoman Ellen Qualls said in a statement. “But Attorney General-elect Herring will review what powers the Attorney General and Governor have to correct a policy that limits women’s access to health care.”

Published reports last year indicated 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.

The bill that set into motion the contentious process of developing the regulations passed in 2011. 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 Virginia Board of Health initially voted to exempt existing clinics from the requirement, but Mr. Cuccinelli told board members they had exceeded their authority and that his office might not represent them if they were sued. The board reversed its position.

Carl Tobias, a professor at the University of Richmond School of law, said that while the attorney general’s advisory opinion could carry weight in a legal case, Democrats could always ask the incoming attorney general for a new interpretation.

“I don’t believe the new governor is going to feel bound by this,” he said.

Mr. Tobias said another option would be to ask Mr. Herring more broadly to issue an advisory opinion on the legality of the process by which the board approved the regulations.

“It seems to me the Democrats should come in on the first day and ask if these regulations were validly enacted,” he said.

Mr. Marshall also acknowledged that Mr. Herring could issue a contrasting opinion.

“I hope Mark is not willing to do that,” he said. “He can defy it, he can ignore it, but any attempt to rewrite it is going to be fraudulent from the first.”

• Matthew Cella can be reached at mcella@washingtontimes.com.

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