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ACLU: AG does not have veto power in regulatory process

During the recent Board of Health vote on June 15 regarding new rules for women’s health centers that provide abortion care, a heated debate arose between Board members and representatives of the Attorney General’s Office over the authority of the Board to amend the new rules so that existing women’s health care centers would be “grandfathered in,” rather than subjected to onerous and unnecessary building requirements that are only meant for the construction of new facilities.

Yesterday, the ACLU of Virginia sent a letter to State Health Commissioner Dr. Karen Remley and members of the Board of Health explaining that, while the Attorney General has the responsibility to review proposed regulations to determine if the Board has the authority to adopt them, the law does not give his Office veto power over the Board’s policy decisions about what to include in the final rules. 

The Attorney General has two roles to play when a state agency is considering the adoption of regulations. One is to provide legal advice, as the Board’s lawyer. As its counsel, the AG’s advice can inform the Board’s action, but it cannot and should not decide it or force the adoption of one legally defensible policy over another.

The second role the Attorney General plays is to “certify” on the public record whether the Board has the authority to adopt the rules under consideration. In this case, there is no credible legal basis for the Attorney General’s assertion that the Board does not have the authority to issue a regulation that excepts existing health care facilities from meeting construction and building codes adopted after they were built. By threatening to refuse to “certify” the Board’s authority, the Attorney General essentially has claimed veto power over the Board’s policy decisions – a threat that is intended to force the Board to rewrite the rules to suit the AG’s policy objectives. That is not the AG’s job, however.

Moreover, the AG is wrong on the law. There is nothing in the Code (or the recently enacted law, Senate Bill 924, defining abortion providers as hospitals) that requires the Board to impose extensive, burdensome construction requirements that have no relation to the safety of the services that women’s health centers provide. This is particularly clear since the AG’s forced interpretation of the law in this instance is at odds with every other regulation of health care facilities, and far from consistent with prior interpretations of the law at issue.

This latest action from the Attorney General is yet another attempt to advance the Attorney General’s personal anti-choice ideology in this ongoing regulatory process. Documents obtained through a Freedom of Information Act request revealed that the AG’s office intervened in the drafting of the emergency regulations of women’s health centers that provide abortion care. The AG forced inclusion of medically irrelevant requirements in the draft proposed rules that had been rejected by the Department of Health’s appointed medical panel, including the medical panel’s recommendation that the regulations stipulate that new construction physical requirements not apply to existing health centers.

Moreover, this is not the first time the Attorney General has overstepped his role as counsel by seeking to dictate his view of what state policies should be through the regulatory process. Last year, regarding new rules for protection from discrimination in non-residential and residential programs operated under the Department of Juvenile Justice, the AG’s Office representative told the Board of Juvenile Justice that, as a matter of “policy,” the Office would not certify any regulation that contained the words “sexual orientation,” arguing that the Board was without authority to achieve the goal of protecting vulnerable children from discrimination on the basis of sexual orientation by “creating a protected class.” However, the Office made no effort to work with that Department to find a way to exercise their inherent power and responsibility to protect the constitutional rights of the youth who are their special concern.

The AG’s Office made the same assertions regarding the scope of a policy board’s authority when the Board of Social Services sought to adopt rules that would have protected Virginians seeking to adopt or foster children, and children eligible for adoption or foster care, from discrimination by licensed child placing agencies based on race, national origin, ethnicity, gender, age, religion, political beliefs, sexual orientation, disability and family status.

Finally, the same kind of policy position was reflected in the letter the AG sent to the boards of Virginia’s public colleges and universities asserting that they did not have authority to adopt policies prohibiting discrimination based on sexual orientation against students, faculty and staff.

No matter the agency or the topic of regulatory action, the Attorney General does not and should not have veto power over policy decisions delegated to citizen boards by the legislature regarding what to include in final rules. Board members faced with “legal advice” from the AG’s office that is clearly informed more by political objectives than legal principles should decline to follow it and take whatever action is necessary to see that the regulations that they believe are in the best interests of Virginians are published and implemented.