Virginia Attorney General Ken Cuccinelli has released another controversial and politically charged opinion -- this time on abortion -- which seems to have become the norm since the Republican took office in January.
State government can oversee abortion providers in Virginia, much as it already regulates outpatient surgery centers, Cuccinelli said in an advisory opinion.
Cuccinelli's legal advice, issued Friday, could arm state agencies under a conservative governor with powers over abortion
clinics that the General Assembly has refused to enact every year since the early 1980s.
Attorney generals' opinions are not legally binding, as court rulings are. State and local officials use them for guidance in
administering state policy and in forming legislation.
But on Monday, Del. Robert G. Marshall of Prince William, one of two outspoken legislative opponents of abortion rights who had
sought Cuccinelli's opinion on clinic regulations, asked Gov. Bob McDonnell to swiftly implement Cuccinelli's findings. McDonnell is
a fellow Republican and abortion foe.
The other, state Sen. Ralph Smith of Roanoke, wrote last week that the opinion "sets the stage for regulating abortion clinics
like other medical facilities."
McDonnell chief spokesman J. Tucker Martin said the governor had just received the opinion and is reviewing it, but noted that
McDonnell believes abortion clinics should be regulated as outpatient surgery facilities already are.
Cuccinelli, a staunch abortion foe, wrote that the definition of a hospital also encompasses facilities where first-trimester
abortions are performed.
His opinion reasoned that the state can regulate medical and safety conditions in abortion clinics as long the actions don't
undermine court decisions protecting a woman's legal right to abortions, including the Supreme Court's 1973 Roe v. Wade decision.
"This is basically an effort to use his executive power to push through a political agenda that he was unable to achieve through
the democratic process," said Tarina Keene, executive director of NARAL Pro-Choice Virginia, an abortion rights advocacy group.
Jessica Honke, the director of public policy at Planned Parenthood Advocates of Virginia, said she agrees that Virginia can
regulate all medical facilities, including abortion clinics.
"But if they use the opinion to impose an agenda that singles out one medical procedure that interferes with women's rights to
health care, we will have objections to that," she said.
It was the most recent in a series of controversial and politically charged opinions and legal actions by the socially conservative Republican attorney general since he took office in January.
In March, an opinion said that college administrators could not enact policies protecting gay students or faculty from discrimination, and he sued the federal government over health reforms days after they became law. He also launched an investigation into whether former University of Virginia professor Michael Mann's research into climate change defrauded taxpayers.
In Friday's opinion, Cuccinelli notes that there is no requirement to perform abortions during the first three months of a pregnancy in a hospital. Instead, they can be performed in what reproductive services providers characterize as "physicians' offices," exempting them from Board of Health licensing requirements.
"Nevertheless, the Board has broad authority to adopt regulations as may be necessary to carry out (state law), and this regulatory authority includes defining an 'abortion clinic,' investigating an assertion by a facility that it constitutes a physician's office,' and regulating facilities beyond licensure," Cuccinelli wrote.
But he also asserts an equally broad authority by the Board of Medicine, including "the ability to license, investigate, and discipline physicians, including those who perform abortions."
Among the Board of Medicine's regulatory and oversight prerogatives, he said, are the proper administering of anesthesia outside of hospital settings.
Cuccinelli cites a decision by the Richmond-based 4th U.S. Circuit Court of Appeals upholding South Carolina's regulations "addressing medical and safety aspects of providing abortions, as well as the recordkeeping and administrative practices of abortion clinics," including those performing first-trimester abortions.
The extent to which McDonnell will accept Cuccinelli's guidance was unclear Monday. The governor compiled a socially conservative
record in the General Assembly and as attorney general from 2006 until last year.
Martin's e-mailed response to an The Associated Press inquiry suggests that tighter regulations are on the way.
"The governor is a longstanding supporter of ensuring that abortion clinics, and their medical personnel, are treated equally with other out-patient surgical hospitals by the Commonwealth to ensure services are provided in a safe manner," Martin wrote.