Ken Cuccinelli's End Run on Abortion

Virginia abortion rights advocates saw it coming. After Ken Cuccinelli, a rising Republican star known for his hard-line stances on most social issues, was elected state attorney general last year, they knew it was only a matter of time before he zeroed in on abortion.

Earlier this week, Cuccinelli issued a legal opinion advising the state of Virginia to tighten regulation of abortion clinics, holding them to the same standards as hospitals. Abortion-rights groups believe that these regulations would force the majority of the state's clinics out of business.

Cucinelli's tactic is not new. In 2001, Mother Jones ran a story about the rise of what abortion rights advocates call TRAP laws, short for Targeted Regulation of Abortion Providers. The article, written by Barry Yeoman and titled "The Quiet War on Abortion," detailed the anti-abortion movement's shift from targeting the legality of the procedure to applying pressure on its providers:

The new stealth strategy has its genesis in the 1992 U.S. Supreme Court decision Planned Parenthood v. Casey. The ruling reaffirmed 1973's Roe v. Wade, signaling that overt bans on abortion were unlikely to pass constitutional muster. But it also declared for the first time that states have some authority to regulate abortion clinics, as long as they don't place an "undue burden" on women's access to abortions.

The Casey decision started abortion opponents rethinking their tactics. Since direct assaults on Roe wouldn't fly, "there had to be a shift in strategy by regulation on the outskirts of abortion," says Dorinda Bordlee, staff counsel for Americans United for Life. That's when leaders developed a new approach: Couch the issue in terms of women's health. By claiming that abortions take place in dirty facilities and cause such illnesses as depression and breast cancer, right-to-lifers realized they could subtly move the focus of the debate.

According to NARAL Pro-Choice America, varying degrees of TRAP laws have passed in 44 states plus the District of Columbia. While he was a Virginia state senator, Cuccinelli pushed for the passage of stringent new regulation of abortion clinics. Tarina Keene, the executive director of NARAL Pro-Choice Virginia, explained that Cuccinelli's previous efforts were stymied by a slim Democratic majority in the state Senate that blocked his proposals from reaching the floor. She is not surprised that he is using his current post to try to circumvent the legislature to achieve his longstanding goals.

William Hurd, a former solicitor general for the state of Virginia, does not think Cuccinelli has political motives. "The practice has been to call 'em as you see 'em, and that's what the attorney general has done here," he said. "I think the opinion is very carefully crafted, saying that while the boards do have some authority to regulate this, they are also subject to constitutional limitations. Certainly, while people may debate the abortion issue, in terms of pro-life or pro-choice, certainly everyone should agree that women are entitled to good health care."

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Nicole Allan is a former senior editor at The Atlantic.

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