Cuccinelli’s head games
The attorney general doesn’t have the authority to guess at legislators’ motivations on abortion regulations.
When legislators passed a 2011 law requiring abortion clinics to follow regulations similar to those for hospitals, some hoped that the rules would force most or all of the women’s health centers to close. Others just wanted to avoid a primary challenge that fall. Their motivations won’t matter when the new law comes under an inevitable court challenge. The judge who will decide how the law applies in Virginia will look only at the words approved by the legislature.
Virginia judges aren’t allowed to guess what legislators thought they were doing when they voted. Most judges shudder at the idea of ruling on legislative intent, recognizing it as a path strewn with migraines, nightmares and despair for the future of the commonwealth. It’s also a path that leads to bad law.
July 20, 2012 - 6:15 AM
It seems to me the pivotal question is whether the board of health has carte blanche authority as how to interpret/implement the legilative act.
Did the legislature grant them such authority? If not, how much?
If yes to total discretion, your editorial is correct. To whatever degree the authority is limited, to that same degree, you are wrong. In the latter case this would mean a mis-representation as an excuse to (once again) bash Cuccinelli.
As to the board’s authority, specific to this legislaion, I don’t know. Would very much like to hear from someone who does.
Here’s a link to the authorizing legislation.
Thanks for that link Luanne! I think it clarifies the issue and proves who is picking the fight and why quite well.
This is probably the most biased media article I’ve read on this website. I believe abortion is morally wrong, but I’m not sure I could keep from encouraging my own daughter to consider the impact of such on her life, and the severe hardships or limits rearing a child as a teen would create. My paternal instinct is to teach her to eliminate obstacles in her path, and at the same time never give up her dreams. Would I advise her to abort? It would be a tough decision. It’s much easier to lobby against it when it’s not your daughter pregnant. Yet, I hope that I could. If it was illegal, the decision wouldn’t be so tough. That’s how you keep it real. Take note.
The legislation as passed by the VA legislature & signed into law by the governor, requires abortion clinics to abide by the same building standards as new medical facilities.
The board of health removed such requirement, allowing grandfathering of existing facilities. This exceeds their authority.
You can agree or disagree with the new requiremants, but they were duly enacted. Cuccinelli represents the state, and it’s citizens as to laws passed by duly elected officials. He did not write the law, he is right about what it says & the obvious intent of the law.
It presupposes that the requirement existed, if the board removed it, which they did.
The Board of Health can only recommend, not decide this. They still have enough Democrat/Liberals on the board to give the abortion crowd their exemption for current clinics.
The issue is safety for women in Virginia. People have died in VA abortion clinics due to lack of safety…they have “doctors” but must call 911 if there is a problem. Is that safety for a surgical clinic??
AG Cuccinelli was correct to make his recommendation, then the Governor will decide.
Would you exempt all current automobiles from seat belt laws and just require that of future cars?
All surgical abortion clinics in Virginia should follow the same safety standards….PERIOD.
The legislation says the board shall write rules to regulate clinics as hospitals. (Which it did.) Please quote the section of the legislation that says “as new medical facilities.”
#7 Fine, as hospitals. Yet the board did revise this intent. Right or wrong?
“The board of health last month amended draft regulations to effectively grandfather clinics into compliance with the new design and building requirements. At the June 15 meeting, Senior Assistant Attorney General Allyson Tysinger advised the board that its action conflicted with state law and said the attorney general’s office was not likely to certify the regulations.”http://www.roanoke.com/politics/wb/311654
We can go into the various building, staffing requirements, etc., but I think you will agree they do exist.
If the legislature had intended the new requirements to be grandfathered, they would have done so.
My #8 http://www.roanoke.com/politics/wb/311654
Sorry, didn’t hyper-link.
#7 In addition, whether the legislation uses the precise terminology “new medical facilities” is not only pure semantics, but IMO disingenuous.
“RICHMOND — Virginia’s attorney general refused to certify new abortion clinic regulations Monday, saying the Virginia Board of Health unlawfully stripped a hotly contested provision requiring clinics to meet the same strict architectural standards as new hospital construction.”
http://www.newsleader.com/article/20120717/NEWS01/307160009/Cuccinelli-won-t-certify-abortion-clinic-regs
Many more such cites, this was the first I ran into in a quick search, if you don’t like this one
There is no doubt that the new regulations/requirements are based on new construction standards. Again, one might agree or not with such legislation, but that is what was passed, & what Cuccinelli is ruling upon.
Well, let’s see…Justice Roberts decided Congress ment “tax” even though they wrote “penalty” in Obamacare. All we need is to have one botched abortion at one of the clinics (as they exist now) to have the editorial board of this paper do a 180.
The legislature has never interfered with the board’s decision to grandfather in existing medical facilities in the past, and it did not address that issue with the abortion clinics. There’s nothing in the law that suggests legislators wanted clinics to be treated differently.
Virtually every new regulation issued allows for grandfathering of businesses that would be put under or seriously harmed if required to retrofit. The ADA is one everyone is aware of for sure.
Seriously BlueMax, do you believe that when the seatbelt laws went into effect they pulled cars without them off the road? Really?
Under what authority does any legislation make an active business close or take on more debt than they can sustain to continue operating? Name one example. How is this NOT the very “government regulation” that kills jobs and business you all are normally railing against with spittle flying? How do you do these switchbacks? Whiplash much?
#12 Well, we’re making some progress. The board did revise the law. The very purpose of the law was to put new requirements on abortion clinics. Again, one can agree or not, but such requirements are exactly what we are talking about.
What the legislature did “in the past”, is quite obviously beside the point. The legislature was dealing with the present & future.
“There’s nothing in the law that suggests legislators wanted clinics to be treated differently.”
There is everything in the law that explicitly says how they wanted the clinics “to be treated”.
Yes, the law clearly states that abortion clinics will be regulated. While I don’t agree with that, that is what the law says. The law does not say that clinics will be treated differently than all other medical facilities within the regulatory system. That is the point of the editorial.
#15 That’s right, it doesn’t, which is the point of the law. To bring such clinics into the same regulatory requirements as “all other medical facilities”. Your terminology, bet that doesn’t show up verbatim in the law either.
#13 “Virtually every new regulation issued allows for grandfathering of businesses that would be put under or seriously harmed if required to retrofit.”
I have no idea if this is accurate, “virtually” or otherwise. Since it doesn’t matter here, for now I don’t care. The bill in question explicitly does not. Only the board added it.
Jim, the new law says that clinics will be treated like hospitals. It doesn’t say “new hospitals.” Therefore, the rules for grandfathering in existing facilities should apply as they do for hospitals.
Dear CBS & others (RT?); Bass Pro Shops & Gander do not sell assault rifles.
#18 What “should apply” is the intent & the explicit wording of the legislation. Not the opinion of the RTEB.
Exactly, Jim, the explicit wording of the legislation. The law says they should be regulated as hospitals. Period. It charges the board to write regulations. It did. The AG does not like what the permanent regulations so he is implying something that is not in the law.
At no time, ever, did lawmakers say they wanted them regulated as “new” hospitals.
Luanne, we’ve covered the “new” bit. The regulations & requirements, aisle width, etc., etc. are in the legislation. There is no grandfather clause in the legislation. The board added such.
You are out of semantics & rationalizations.
It’s the board’s job to establish the regulations, Jim. The law merely instructs the board to apply those regulations to abortion clinics as they already do to hospitals.
It was/is the board,s job to establish regulations within the context of the manifest legislation. That legislation included new standards & did not include any grandfather(ing) clause. The board revised and amended the legislation to include such.
Regardless, the omnipotent authority you claim to give the board is false. The final word lies with the Governor. Unless you think the board can circumvent that also.
You need to read the law. Luanne provided a link above. Also, the Administrative Process Act says that the board makes the final call on regulations, although McDonnell is seeking to get around that with his executive order.
Cooch and McDonnell are trying to bail out the GOP legislators who didn’t write the law they thought they wrote. They need to take the loss, and try again next year.
The board did NOT revise and amend legislation. It cannot do that. Again, Jim, the law gave the board the power to write the regulations. It required it to write temporary “emergency” regulations AND to write permanent regulations.
It did both. The AG does not like the permanent regulations.
The law did not dictate the specifics of the regulations only that the clinics be classified as hospitals and left the board with great leeway into how to do that. Period.
#25 & 27: Really?
“There are 22 facilities that provide first-trimester abortions in Virginia, and all of them may have to close their doors over the next two years if they can’t meet the state government’s rigorous new health clinic regulations.”
“Virginia lawmakers passed legislation in the spring that required the Department of Health to release a set of “emergency” draft regulations for abortion clinics that were to go into effect by December 31.”
“The rules, released late on Friday, borrow a number of very specific physical plant requirements from a rulebook intended for the construction of new hospitals. For instance, a clinic must have 5-foot-wide hallways, 8-foot-wide areas outside of procedure rooms, specific numbers of toilets and types of sinks and all the latest requirements for air circulation flow and electrical wiring.”
“If the Board of Health passes the new standards on September 15, abortion clinics have until January to show the state a plan for the extensive and expensive renovations they’ll have to undergo in order to meet the new requirements.”
http://www.huffingtonpost.com/2011/08/29/virginia-abortion-clinics-new-rules_n_940975.html
I’ll try and explain this once again. The temporary emergency regulations — written by the board, not lawmakers — were the most restrictive, requiring existing buildings to meet the latest building codes.
The draft permanent regulations mirrored those. The board amended the draft so that it would not require a building constructed to hospital standards the year before the latest codes were adopted to comply with the latest codes.
You do understand, Jim, that even Carilion’s newest addition would not comply with the latest building codes.
As the time sequence in my 28 (my number icon is not working) clearly shows, the legislature passed the specific requiremants, the board first wrote to them & later amended.
“amended” (my emhphasis), glad you agree.
requirements…..thanks
From your editorial:
“When legislators passed a 2011 law requiring abortion clinics to follow regulations similar to those for hospitals, some hoped that the rules would force most or all of the women’s health centers to close. Others just wanted to avoid a primary challenge that fall. Their motivations won’t matter when the new law comes under an inevitable court challenge. The judge who will decide how the law applies in Virginia will look only at the words approved by the legislature.”
“At issue is whether existing clinics must retro-actively comply with the newest rules for hallway width, operating room dimensions and other architectural standards. State regulators have traditionally grandfathered in existing hospitals and other medical facilities when guidelines are updated, applying the latest building codes to new contruction and renovations.”
1. It is clear the original intent of the legislation is to require such stringint standards.
2. It is clear, by your own words, the original legislation allows no gradfather(ing) clause.
3. You acknowledge the board originally drafted such stringent standards.
4. You acknowledge they later amended such.
It is exactly this amendment that violates the intent of the legislation, as expressed accurately in the board’s original draft.
I apologize for taking your very first comment seriously, Jim. You said, “It seems to me the pivotal question is whether the board of health has carte blanche authority as how to interpret/implement the legilative act.
“Did the legislature grant them such authority?”
The legislation clearly gives the board that authority. You do not seem to understand the process, so I’ll explain, and then I’m done, because clearly you have been unable to except the answer of “yes” to your first question.
1. The General Assembly passes legislation directing the board to regulate abortion clinics as hospitals. It directs the board to write temporary and permanent regulations. It does not say what should or should not be in the regulations.
2. the board writes restrictive temporary regulations.
3. The department drafts restrictive permanent regulations and circulates them for review, as required, before presenting them for board approval.
4. In adopting permanent regulations, the board amends the draft regulations, as it has the authority to do so.
At no time did the board exceed its power or amend legislation.
I too am finished:
“Richmond, Va. (AP) — Virginia’s attorney general has refused to certify new abortion clinic regulations, saying the state Board of Health unlawfully stripped a hotly contested provision requiring clinics to meet the same strict architectural standards as new hospital construction.
Republican Ken Cuccinelli’s office sent a memo to Health Commissioner Karen Remley on Monday saying the board exceeded its authority.
Abortion rights supporters had vigorously opposed the provision, saying it would force most clinics in the state to close. The board’s 7-4 vote last month to exempt existing clinics from the requirement prompted a spontaneous celebration by critics of the regulations.
Senior Assistant Attorney General Allyson K. Tysinger had told the board that the law passed by the General Assembly specifically mandated the tougher building standards.”
http://www.chron.com/news/article/Virginia-AG-won-t-certify-abortion-clinic-rules-3711224.php
Luanne, Christina….I “lied”, one (last?) question, rhetorical or otherwise; If, as Luanne says in #33, the authority of the board is “carte blanche” reference the legislation, why do they need Cuccinelli’s certification? Isn’t this obvious point proof their authority is not such? Isn’t this point the entire crux of our discussions?
Thanks for your time & the complete fairness of how you handled all the posts.
The Administrative Process Act gives the AG the opportunity to certify whether or not the board has the legal authority to issue the regulations, but a negative conclusion doesn’t block the regulations, as Cuccinelli has acknowledged. McDonnell also has an opportunity to comment on the regulations. The APA gives the board the overriding authority in regulatory development, although governors shape policy through appointments. McDonnell issued an executive order that seems to be an attempt to give him the final call on the regulations. Whether that overrides the usual APA process is likely to be a matter of debate in any future lawsuits. Regardless of the process, neither the governor nor the AG can re-interpret the law to say that legislators intended to make clinics “new hospitals.” The law simply says that clinics will be classified as hospitals. The word “new” is nowhere to be found.
Ms. Nuckols you know as well as I that from any practical point of view that without the Governor’s approval the reccomended regulations go no where.
That the beginning of such executive review begins with the advice of the AG as to whether such reccomended regulations are in accordance to legislative intent.
That Cuccinelli has advised that the amended regulations from (and opposed to) the original draft regulation do not.
Lot’s of luck with your carte blanche.
The regulatory process is lengthy and typically cuts across more than one governor’s term, so that’s not how it typically works, but the governor’s executive order is his way of trying to change the process. You are incorrect about the AG’s role. He simply certifies that the board has the authority to issue the regulations. The whole point of the editorial is that he does NOT have the authority to assert what the legislative intent was beyond the plain meaning of the words in the statute. Nor does the governor.
Posted at 10:45 PM ET, 07/16/2012 TheWashingtonPost
Va. AG’s office declines to certify abortion clinic regs
By Laura Vozzella
The office of Virginia attorney general Ken Cuccinelli II (R) on Monday refused to sign off on state Board of Health regulations that had exempted current abortion clinics from new, hospital-style construction standards.
In a surprise move a month ago, the board voted to exempt existing facilities from the new rules, which would have required extensive renovations.
In a four-sentence letter to the health department, senior assistant Attorney General Allyson K. Tysinger said that the the office would not certify the regulations. (My emphasis).
http://www.washingtonpost.com/blogs/virginia-politics/post/va-ags-office-declines-to-certify-abortion-clinic-regs/2012/07/16/gJQAzm5wpW_blog.html
“The Board does not have the statutory authority to adopt these Regulations,” it says. “[T]he Board has exceeded its authority. Thus, this Office cannot certify these Regulations.”
Sure sounds like advise & assertion to me. Swear I am done (unless someone else regenerates the thread). Thanks again for your time.