Another Abortion Showdown in Virginia
Attorney General Cuccinelli rejects the decision of the Board of Health.
Virginia Attorney General Ken Cuccinelli is once again trying restrict abortion access in the commonwealth
Photograph by Mandel Ngan/Getty Images.
Last spring, Virginia Gov. Bob McDonnell was a pretty credible candidate for the vice presidency. Then he tripped over a trans-vaginal ultrasound bill that enraged women throughout the commonwealth and turned—almost overnight—into a great big political cautionary tale. As Alexander Burns explained in Politico, McDonnell’s early support of a law that would have mandated an invasive ultrasound procedure for women seeking abortions “turned McDonnell’s national political fortunes upside down.” (He later switched positions, signing a modified version of that law that did away with the now politically-toxic internal probe.) McDonnell not only became a walking human punch line for a few days, but he also may have finally managed to turn the commonwealth into a blue state: President Obama appears to have opened up a 20-point lead over Mitt Romney among women voters, who, presumably, didn’t want the state probing them for no coherent medical reason.
You’d think the lesson would be clear here: Voters may be deeply conflicted on the question of abortion, but women aren’t going to tolerate state efforts to eliminate it under the guise of protecting their superfragile health. Even voters worried about jobs and the economy aren’t too distracted to notice when the state begins to talk about women as if they just aren’t all that bright. But the message seems to have been lost amid breezy explanations that the Virginia trans-vaginal overreach was a one-off, or that the governor’s tanking poll numbers were unrelated, or that women in the commonwealth just won’t notice a blatantly political government overreach if it happens again.
Yes, it’s happening again. And women in the commonwealth have noticed.
Last year the abortion-obsessed state Legislature passed a bill that classified abortion clinics that perform more than five first-trimester abortions per month as “hospitals” rather than doctor’s offices. That’s a fairly standard TRAP law, modeled on legislation Attorney General Ken Cuccinelli failed to pass back when he was a member of the state Legislature. Tacked onto an “emergency preparedness bill” at the last minute, the new law mandates that the clinics would be required to provide, among other things, a parking spot for every bed in the clinic (although no overnight stays are needed), add toilets, increase the size of treatment rooms, and widen hallways so that they can accommodate the width of two gurneys (which also aren’t used in these clinics). Instead of being treated like clinics that perform oral or plastic surgery, facilities that had been performing abortions safely for decades had to morph into hospitals.
The goal of regulating outpatient medical facilities as though they are hospitals was always to shut down clinics. And it was clear from the outset that 17 of the state’s 21 clinics could not afford to retrofit their facilities to meet the new standards. Surprisingly, the governor and his intrepid attorney general lost that battle on June 15, when the Virginia Board of Health voted 7-4 to grandfather in the existing clinics. New clinics will have to satisfy the new provisions, but the old ones are exempted from the need to do the costly retrofitting.
This week, Attorney General Cuccinelli announced that he would not certify the new rules, substituting his own legal view for the judgment of the board. In a letter to the board and to the state health commissioner, his office takes the position that the Board of Health exceeded its authority to grandfather in the existing clinics in because the new law requires that old facilities meet the new standards.
Nothing in the new law says anything of the sort. The new law merely added abortion clinics to the board’s definition of a hospital. The Virginia Code expressly gives the board statutory authority to promulgate regulations for health care facilities. The health and safety guidelines for the board are explicitly “intended as minimum standards for designing and constructing new health care facility projects,” not regulating existing ones. Cuccinelli’s representative admitted as much at the June 15 Board of Health meeting. Moreover, the guidelines have never been read to apply to existing buildings in the past. In a letter from the Virginia ACLU to the state health commissioner, the attorney general’s interpretation of the board’s authority is described as resting on “deeply flawed legal analysis.” But the attorney general’s office has a longstanding pattern of “interpreting” state policies in “deeply flawed” ways to suit his own ideological views, in culture-war matters ranging from juvenile justice reform to discrimination based on sexual orientation.
As he battles his way to the governor’s mansion, the attorney general has established a pattern: Evidently he is willing to lose massive symbolic cases that serve the larger interests of nobody and accomplish nothing but do show off his Tea Party bona fides. Again this week, Cuccinelli’s office takes the position that he is merely offering his legal “advice.” Take it or leave it. The regulations now await legal review by the governor, then head back to the board. And in case you’re still in suspense over all this, just days before his attorney general declined to certify the new rules, McDonnell also announced the appointment of a new member of the Board of Health: John Seeds, vice chairman of the anti-abortion group OBGYNS for Life. Seeds has written that "Abortion is the voluntary killing of a human life that requires, in my opinion, turning away from God and his love.”
So did the elected leaders of Virginia learn nothing from an entire spring lost to failed “personhood” amendments and mandatory, medically unnecessary internal ultrasounds? That sure seems to be the case. Maybe they’re right and women won’t notice that—yet again—a bunch of men are willing to put their ideology over women’s constitutionally protected right to terminate a pregnancy in the first trimester. Maybe women won’t care that these politicians, with no medical expertise whatsoever, continue to veto and overrule medical professionals on complex medical questions. Maybe that huge enormous gap in women’s—and particularly young women’s—support for the GOP has nothing to do with the ways in which the McDonnell administration has wasted precious time and energy on a war on women, then cynically called the war on women a smokescreen invented by his opponents.
Maybe women won’t notice this time. But maybe they will.
Dahlia Lithwick writes about the courts and the law for Slate.