AG Herring’s new opinion strikes 2011 TRAP laws which closed Virginia abortion clinics

by | May 5, 2015 | POLITICS

A new opinion from Virginia Attorney General Mark Herring aims to undo ‘medically unnecessary’ changes made by former AG Ken Cuccinelli.

A new opinion from Virginia Attorney General Mark Herring aims to undo ‘medically unnecessary’ changes made by former AG Ken Cuccinelli. Three abortion clinics were closed in the Commonwealth following Cuccinelli’s opinion, but Herring hopes to protect the other 18 which remain.

In the midst of a review of abortion facility regulations, Herring (top image) released a statement saying former Cuccinelli dispensed incorrect legal advise to the Virginia Board of Health, which led to the closing of the women’s health clinics, including the busiest clinic in Virginia.

In an executive order issued in September, 2014, Gov. Terry McAuliffe tasked the Virginia Board of Health with reviewing the policies, commonly referred to as TRAP (Target Regulation of Abortion Providers) legislation which were enacted in 2011.

As part of the review, Virginia Health Commissioner Dr. Marissa Levine requested the attorney general’s opinion on a number of issues.

“Despite what the previous attorney general claimed, nothing in the law requires or even authorizes the Board to apply these design and construction standards retroactively,” said Herring in the new opinion released yesterday. “Without his interference, the Board would have done what it has always done which is apply these standards to new facilities, not preexisting ones.”

“That inappropriate intrusion produced regulations that would impose a de facto abortion ban in Virginia by forcing many health care facilities to either shut down, leaving thousands of women without access to critical services, or to stop offering abortion services.”

Senate bill 924, which was filed during the 2011 General Assembly session and signed into law by disgraced former Governor Bob McDonnell, required the Board of Health to pass minimum requirements for any facility performing five or more abortions per month. These regulations dealt with infection prevention, disaster preparedness, design, construction and more.

The opinion was extended to all current facilities, even those who might have otherwise been grandfathered out of the new regulations.

According to Herring and the ACLU, that is not correct. Rather, SB924 gave the Board of Health the power of regulation at future facilities.

In a press release, the ACLU of Virginia said they welcome the current AG’s opinion, which coincides with the statement they released in 2012 when Cuccinelli gave his opinion.

“There was no credible legal basis for the former Attorney General’s assertion that the Board does not have the authority to issue a regulation that excepts existing women’s health care facilities from meeting construction and building codes adopted after they were built,” said Kathy Greenier, Director of the ACLU of Virginia’s Reproductive Freedom Project.

“We welcome the correction of that deeply flawed legal analysis that resulted in the imposition of medically unnecessary and financially burdensome requirements that would drive abortion providers out of business.”

The ACLU released a statement during Cuccinelli’s reign which said he was allowing his personal political views to cloud the regulatory process.

They admitted abortion is a politically charged issue, it should still be regulated according to quality health care standards.

But Herring’s new opinion overrules much of what was said during the Cuccinelli administration, and the new AG said he wants women to have access to safe healthcare facilities.

“Virginia women can make their own healthcare decisions,” Herring said, “and they have a right to safely and affordably access the full range of healthcare services they may need in the communities where they live.”

It is unclear what the changes in regulation mean for the three closed clinics.

Brad Kutner

Brad Kutner

more in politics

There Will Be No Casino: The Lessons of November 7th, 2023

It’s over. Again. Richmond beat back the ghouls of predatory greed and political prostitution. After a battle, all seems eerily quiet. The quiet unsettles if not followed by the housekeeping of the battlefield - damage reports need filing, and new plans need...

Who Are We Becoming?

Voting No Casino & Reclaiming a Radical Vision of Solidarity & Economic Freedom Amidst a Divisive Casino Campaign Over the weekend, I learned that one of the owners of the proposed casino who is also one of the most powerful Black women in America, Cathy...

What Virginia College Students Need to know About Voting

This story is for subscribers to VCU’s Capital News Service. If you have questions or comments, please contact Alix Bryan at or 804-921-0114. RICHMOND, Va. – College-aged people are among the largest voting block, yet tend to have the lowest turnout in...

Labor Peace or Lawsuits?

This piece is one in a series of opinion pieces by Jon Baliles about the proposed Richmond Grand Resort and Casino. You can read his other pieces HERE. The casino advocates made a big deal about their labor peace agreement that was reached with the Washington,...

Make It Impossible to Happen Again

This piece is one in a series of opinion pieces by Jon Baliles about the proposed Richmond Grand Resort and Casino. You can read his other pieces HERE. The Richmond Times-Dispatch Editorial Board and reporters sat down this week with the casino opponents who said the...

Resorts Like Airports

There has been a lot of boasting from the casino advocates about their partnership with Kentucky-based Churchill Downs, Inc. (CDI). The rebranded Richmond Grand casino developer Urban One is a radio and TV conglomerate that has said they are partnering with CDI...

Pin It on Pinterest