- Associated Press - Monday, May 4, 2015

RICHMOND, Va. (AP) - New, strict building standards should not be applied retroactively to existing abortion clinics, Virginia Attorney General Mark Herring said Monday in an opinion contradicting advice given by his Republican predecessor.

The new standards would treat abortion clinics like hospitals and cover issues such as hallway widths, closet sizes and covered entrances. Staff for former Republican Attorney General Ken Cuccinelli told state health officials during his tenure that abortion clinics must abide by the new rules. Herring now says that was bad advice and would essentially shut down abortion services in the state.

“The previous administration provided incorrect legal advice to the Board of Health and intervened in a process that is supposed to be driven by medical professionals,” Herring, a Democrat, said in a written statement. “That inappropriate intrusion produced regulations that would impose a de facto abortion ban in Virginia by forcing many health care facilities to either shut down, leaving thousands of women without access to critical services, or to stop offering abortion services.”

Abortion rights supporters agree and say the building requirements were designed to put existing clinics out of business.

Cuccinelli said Herring - who has made high-profile moves supporting gay marriage and immigration that have angered conservatives - is the one playing politics.

“To go in and reinterpret a law legitimately passed is not legitimate,” said Cuccinelli. “It undermines the authority of the attorney general’s office itself.”

State officials say that of the 18 clinics operating in Virginia, five meet the code for new hospitals and 13 are operating under a variance.

After the General Assembly passed legislation in 2011 requiring the state board of health to license and regulate abortion clinics, the board initially voted to exempt existing clinics from the strict building standards. But staff for Cuccinelli, a staunch abortion opponent, advised the board that it had overstepped its authority and that the legislation was “clear and unambiguous.” The board then voted in 2013 to apply the standards to all clinics.

Cuccinelli noted that Herring was a state senator when the 2011 legislation passed and should be aware that lawmakers did not mean to exempt existing clinics.

“He knows very well what the bill did and was intended to do,” Cuccinelli said.

In his opinion, Herring said that the General Assembly did not make clear that the new standards should be applied to existing abortion facilities, and that applying a retroactive standard would be “contrary to longstanding administrative practice.”

Democratic Gov. Terry McAuliffe ran on a platform of acting as “brick wall” against abortion restrictions. He defeated Cuccinelli in the 2013 gubernatorial contest, ordered the board to revisit the clinic regulations after taking office last year. In December the board voted to start a new regulatory process that could take up to two years.

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