Ken Cuccinelli's End Run on Abortion

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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."

Cuccinelli's opinion is not binding; it merely advises the Board of Health, the state's medical regulator, that it has the ability to regulate facilities that provide first-term abortions. If the board takes Cuccinelli's cue, it will have to open new regulations to public comment and consult with the governor and secretary of health. Such a process would take up to two years.

Virginia Gov. Bob McDonnell, a conservative Republican, has four spots to fill on the 15-person board, the other members of which were appointed by former Gov. Tim Kaine, a Democrat.

If the board were to follow Cuccinelli's advice, the state's 21 abortion clinics would be subject to the same requirements as hospitals. In order to comply, they would have to undergo structural renovations and obtain staff members with new qualifications. The cost of these requirements would, Virginia abortion rights advocates estimate, put 17 of the state's 21 clinics out of business.

"We predict it's about $1.5 to $2 million per clinic in extra cost," Keene said. "It's just crazy. And the thing is, it's really just designed to shut these places down. It has nothing to do with medical care."

She pointed to other outpatient offices performing procedures such as colonoscopies, breast augmentations, and rhinoplasty. "These types of procedures have a much higher complication rate than abortion. [First-trimester abortion] is one of the most common procedures, and it's one of the safest procedures," Keene said. "It's interesting that they are not targeting these other surgeries. It's only abortion clinics -- that's why we call this TRAP."
 
Cuccinelli's opinion anticipates this objection and cites case precedent in his defense:

Regulatory boards may distinguish between abortion and other procedures because, "'abortion is inherently different from other medical procedures," and "for the purpose of regulation, abortion services are rationally distinct from other routine medical services if for no other reason than the particular gravitas of the moral, psychological, and familial aspects of the abortion decision."

In his seven months as attorney general, Cuccinelli has drawn national attention for challenging the federal health care reform law, launching an investigation into University of Virginia climate scientist Michael Mann, and authorizing Virginia police to check the immigration status of anyone they stop for another reason. He has been hailed as a Tea Party star and champion of social conservatives.

"Cuccinelli is a crusader," Keene said. "When it comes to abortion, or gay rights, or any other social issue, he takes up the charge and leads the fight on it. He did it in the House, in the Senate, and now as attorney general. I don't think that this is the last opinion about abortion that we will see coming from this attorney general."

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Nicole Allan is a former senior editor at The Atlantic.

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