Why do Ken Cuccinelli's legal opinions always match his personal ambitions?

Why do Ken Cuccinelli's legal opinions always match his personal ambitions?

Why do Ken Cuccinelli's legal opinions always match his personal ambitions?

The law, lawyers, and the court.
Aug. 25 2010 6:57 PM

In Ken We Trust

Why do Ken Cuccinelli's legal opinions always match his personal ambitions?

Virginia Attorney General Ken Cuccinelli
Virginia Attorney General Ken Cuccinelli

It must be Wednesday, because Virginia's hyperactive attorney general, Ken Cuccinelli, is back in the news. Of course, he was also in the news on Tuesday, on Monday, and last Friday. Religious displays on public land, abortion, immigration, climate change. Is there a single issue from the culture wars over which Cuccinelli hasn't picked a fight? But that's one of the perils of treating one's elected office like a Fox News show: If Cuccinelli isn't launching five national ideological battles per week, his ratings might slip. And so ever onward he trudges, devoting his every working day to treating the commonwealth like it's the Lord's Disneyland.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The AG ended last week by issuing a legal opinion advising that the commonwealth of Virginia can regulate facilities in which first-trimester-abortion services are provided. Currently Virginia treats abortion clinics—which can perform only first-trimester abortions—like medical or dentists' offices or surgical or midwife clinics. Cuccinelli's opinion—responding to a query from state Delegate Bob Marshall and Sen. Ralph Smith—is not binding. The Virginia Board of Health has the authority, in his view, to regulate abortion clinics as if they were hospitals, not outpatient clinics. This is rather convenient because back when he was a state senator, Cuccinelli pushed legislation that would have done exactly this: Forced reproductive centers to meet the standards of a surgical hospital. But the General Assembly thwarted him for eight years. And if you can't pass your anti-abortion legislation democratically, you can do it by fiat as attorney general. It's certainly one way to shrink big government.

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It's not clear that the Board of Health will take Cuccinelli up on his offer. There are currently four vacancies on the 15-member board, the other 11 members having been named by Gov. Tim Kaine. The process would likely take up to two years before any new regulations could go into effect. But if the board does opt to regulate state abortion clinics as hospitals, the 21 abortion clinics across Virginia would need to hire and train new staff and retrofit their facilities at the cost of millions of dollars apiece. For starters, hallways would need to be widened to allow two gurneys to pass each other, even if the clinics don't use gurneys; swinging doors would be mandatory; and clinics would have to be located within 15 miles of an emergency room. Tarina Keene, executive director of NARAL Pro-Choice Virginia estimates that the expense would drive 17 of the 21 clinics out of business.

The effort to make abortions less available by regulating clinics out of existence is hardly a new one. As Nicole Allan points out, this is part of an effort by abortion foes to "shift from targeting the legality of the procedure to applying pressure on its providers." These so-called TRAP (or Targeted Regulation of Abortion Providers) laws, reports Think Progress, include a "law in Mississippi [that] requires that the abortion facility be located in an 'attractive' setting" and another, in South Carolina, requiring that abortions be performed only in facilities that keep their outside areas "free of grass that might serve as a haven for insects."

Cuccinelli justifies treating abortion clinics differently from the many outpatient clinics that perform far more dangerous surgeries—from breast augmentations to nose jobs to colonoscopies—with the circular assertion that abortion can be regulated differently because it's different: "if for no other reason than the particular gravitas of the moral, psychological, and familial aspects of the abortion decision." Why it is that moral, psychological, and family gravitas require the need for wider hallways at clinics is never explored. His legal conclusions, while conceding that Roe v. Wade is still binding law, rest on a 4th Circuit decision from 2000 holding that "addressing medical and safety aspects of providing abortions, as well as the recordkeeping and administrative practices of abortion clinics, and which applied to all abortions including abortions performed during the first trimester, were valid," and Virginia rules that were implemented in 1981 but withdrawn in 1984. This isn't lawyering, it's hardly even serious advocacy.

Tracy Clark-Flory highlights the other familiar theme lurking beneath Cuccinelli's push to regulate abortion clinics: the need to protect the ladies. With thanks to Justice Anthony Kennedy, everything related to abortion policy is now gravely sifted and then sifted again through the "poor silly women" filter. If we women only had more information/ better counseling/ sharper ultrasounds/ shinier equipment/ fewer insects, we would come to understand that abortion is a sin. That's why Delegate Marshall, urging the Board of Health to enact Cuccinelli's regulations, spun it as "a victory for women and children across Virginia .... We should do everything possible to ensure that every woman's life and health and their future pregnancies are protected by the Commonwealth of Virginia. To do otherwise is to shirk from government's first responsibility."

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Of course, the idea that women will be safer if 17 out of the 21 clinics in Virginia are forced to close is addled. As Monica Potts notes here, first-trimester abortions are extremely safe—fewer than 0.3 percent result in complications. Whereas, as she explains, "in a world without legal abortion, which is what they really want, more women would die."

But maybe the real story here is Cuccinelli's unyielding effort to use his office to nudge the governor and state workers to sidestep the democratic process. Don't forget that it was by way of an opinion letter that Cuccinelli advised Virginia's public colleges and universities last March that they must rescind their policies banning discrimination based on sexual orientation. It was by way of an opinion letter—again to Delegate Marshall—that Cuccinelli determined that Virginia police may inquire about the immigration status of people they stop, a power also sought in the controversial new Arizona immigration law. And it is via another opinion letter to Marshall that Cuccinelli announced this week that local governments might endorse sectarian religious holiday displays on public property. It must be convenient to have every last one of your formal legal opinions conform to your fondest personal hopes and dreams.

The attorney general invariably defends his many, many advisory opinions by explaining that they are merely nonbinding opinions, without legal force, that attempt to "clarify" the thorny constitutional questions that keep him up at night. But if all these opinions will affect the way Virginia cops, universities, state officials, and abortion clinics conduct their affairs, he is circumventing the proper channels for changing policy. And if they have no legal impact at all, if they are just his little campaign infomericials, why is he so compelled to keep expressing them? Either Cuccinelli is acting out or he's running for Sarah Palin's vice president. Neither choice really befits the office of the attorney general.

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