Ken Cuccinelli makes his own luck — with a little help from the law.
Virginia's tea party attorney general was going to win — certainly short term; maybe long term — whether the Board of Health accepted or, again, rejected hospital-like regulations for abortion clinics that, they say, are intended to put them out of business.
Cuccinelli's positions are never in doubt and he doesn't hesitate to say what he's prepared to do to prevail. It's a lot easier when you have the law on your side – at least the law as you interpret it.
On Friday, the Board of Health, after balking three months, bowed to Cuccinelli, adopting General Assembly-mandated rules for all abortion clinics, not just new ones. Ahead of the vote his office signaled that members who didn't vote as he expected could find themselves in trouble, in court, on their own, naked before the law.
"Should a board member choose to disregard the attorney general's advice and subsequently be named in a lawsuit related to the particular board action taken … the attorney general is not obligated to provide representation and it is within the discretion of the attorney general to decline both the representation of the board member and the appointment of special counsel," Senior Assistant Attorney General Allyson Tysinger said in a memorandum to the board.
The message was heard loud and clear. The board voted 13-2 to impose on all 20 abortion clinics across the state the same building standards as new hospitals — a requirement sanctioned by the 2011 legislature and signed into law by Gov. Bob McDonnell.
The Code of Virginia gives the attorney general broad latitude in deciding how to provide legal services to state officials; whether through his office or private lawyers hired by the government. However, there are limits. They are outlined in a 1994 ruling by the Virginia Supreme Court, allowing the governor to replace the independently elected attorney general as counsel to a state agency.
The ruling stems from a nasty battle between Gov. Doug Wilder and Attorney General Mary Sue Terry over her investigation of the Virginia Retirement System, the public-employee pension fund. VRS was then controlled by Wilder loyalists, whose investment decisions — in particular, the purchase of a railroad-and-real estate company — would trigger a federal criminal investigation
The Supreme Court edict — to this day, it engenders debate across the country about the role and responsibilities of attorneys general — spotlighted another power of Virginia's chief legal officer: to authorize state government's in-house insurance agency, the Division of Risk Management, to pay private lawyers for work in behalf of public officials.
The attorney general can refuse to approve those payments if an official doesn't do what the law requires, acting outside the scope of his employment or authorization. That's what tipped this for Cuccinelli. He argued that the Board of Health, made up of gubernatorial appointees, was going beyond the requirements of the law by exempting existing abortion clinics from hospital standards — a position the board took in 2006 by applying the regulations to hospitals prospectively not retrospectively.
To James Tierney, a former Maine attorney general and head of the National State Attorneys General Program at Columbia University Law School, this is an object lesson on the job of an attorney general — unpleasant though it may be for those on the receiving end.
"That's why attorneys general are independent; that's why they're separate; that's why they're elected," Tierney said. "They make sure the rest of the executive branch obeys the law."
There are many Virginians — women and young people, among them — who strongly disagree with Cuccinelli on the politics of abortion rights and the policies he advances for eliminating them. And they will remember him in elections ahead. For now, his maneuvering over the past week confirms his standing as the heartthrob of the hard right, further improving his chances of defeating Lt. Gov. Bill Bolling for the GOP gubernatorial nomination next year.
Winning the general election remains a distinct possibility for Cuccinelli for reasons having little to do with this flap over abortion; principally, that he is not easily pigeonholed as an activist conservative zealot. He is an Obama-basher and a climate-change skeptic. But he also is a consumer advocate wary of big utilities and is a law-and-order guy who worries that innocent people are wrongly imprisoned.
Cuccinelli, in this case, was doing his job — not just as a partisan Republican who wants to make abortion illegal again, but as one of the nation's 43 elective attorneys general who found that, this time, the law actually aligned with his ambitions.
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