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Ken Cuccinelli bullies a state board into surrender

By Editorial Board,September 20, 2012

IN THREE YEARS as Virginia’s attorney general, Ken Cuccinelli II (R) has demeaned his office by using it as a blatantly partisan bully pulpit to attack Obamacare, illegal immigrants, homosexuals and climate-change scientists. Now he has managed to bully Virginia’s Board of Health into a stance — unprecedented in state history — that could force most of the commonwealth’s 20 or soabortion clinics to close.

Mr. Cuccinelli, who was a champion of the anti-abortion movement as a legislator, has clung to his current office even as he runs for governor. In doing so, he ignores the example of former Virginia attorneys general of both parties who resigned to run rather than politicize the office. In the Cuccinelli worldview, rendering dispassionate legal advice takes a back seat to agenda-pushing.

So it was in keeping with Mr. Cuccinelli’s crusading style when he threatened members of the state Board of Health last week, warning that they might have to bear the cost of their own legal defense unless they toed his line on abortion regulations. That gambit bore fruit a few days later when the board, evidently intimidated, reversed a position it had taken in June and voted to impose severe new regulations on abortion clinics, where most of Virginia’s 25,000 annual abortions take place.

The opening for Mr. Cuccinelli’s war on abortion came when Gov. Robert F. McDonnell (R) signed GOP-sponsored legislation last year to reclassify abortion clinics so they are treated as hospitals, which are subject to exacting standards governing the width of hallways and doorways, the size of operating rooms, numbers of parking spots — even the types of sinks and water fountains. Sponsors of the legislation — which does not apply to other outpatient clinics performing plastic surgery or oral surgery, for instance — were intent on shutting down abortion clinics, many of which would be unable to afford retrofitting.

However, implementation of the new regulations is the purview of the health board, which had never elected to impose new regulations on existing venues. In June, the board voted 7 to 4 to exempt existing clinics.

That prompted Mr. Cuccinelli to resort to strong-arm tactics, first by threatening he would not certify the new regulations, then by warning that his office, which acts as the lawyer for state agencies and boards, might refuse to represent members of the board of health who were sued if they failed to heed his advice.

If that threat of non-representation — call it the Cuccinelli Principle — were to apply broadly, it’s unlikely that Virginia could fill vacancies on any agencies, boards or commissions. Many citizens would refuse to serve, knowing that the exercise of their best judgment might leave them financially exposed based on the political whims of an attorney general.

The Board of Health buckled, voting 13 to 2 last week to reverse its position. If that decision survives a public comment period and review by Mr. McDonnell, Virginia will be known for two things — the nation’s most draconian anti-abortion regulations and its most politicized attorney general’s office.