The move is classic Cuccinelli: ideological activism masquerading as professional legal “advice.” It was accompanied by his office’s usual disclaimer, issued by a spokesman who insisted that Mr. Cuccinelli’s personal views had not colored his legal opinion. The merits suggest otherwise.
Mr. Cuccinelli’s intervention is not the last word. The dispute will be kicked upstairs to Gov. Robert F. McDonnell (R), who, despite his own anti-abortion views, has been somewhat more circumspect about foisting his conservative agenda on a politically moderate state.
Mr. McDonnell signed legislation last year to classify abortion clinics like hospitals, which are subject to exacting standards governing the size of treatment rooms, the width of hallways and doorways, the number of parking spaces and so forth. The purpose of the legislation, which does not apply to other outpatient clinics performing plastic or oral surgery, was to force the closure of most of the state’s 21 abortion clinics, which could ill afford the costly retrofitting the regulations would require.
But the governor left the details of implementation to the Board of Health. Last month the board ruled that the state’s existing clinics are exempt from the new regulations, which would apply only to new clinics.
Mr. Cuccinelli argues that the law covers existing clinics. But as the American Civil Liberties Union and other groups have pointed out, Virginia law has not been generally interpreted to mandate that existing facilities meet new construction standards. When the Board of Health amended in 2006 its regulations covering hospitals, nursing homes and outpatient surgical facilities, it made clear that the rules applied to new construction, not existing structures.
Advocates of the legislation insist its intent is to protect women’s health. But they offered no evidence to suggest that the state’s clinics, where most of Virginia’s 25,000 abortions annually are performed, are dangerous, unsanitary or slipshod in any way.
The law’s real purpose is to use extrajudicial means to roll back abortion rights, conferred by the Supreme Court in Roe v. Wade, by making the procedure inaccessible to most women in the commonwealth. The Board of Health has taken a courageous stand to ensure that women retain that access. Rather than further politicize the issue, Mr. McDonnell should let the board’s decision stand.