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New Va. Gov. Lacks Authority To Change Abortion Rules, Argues Outgoing AG Cuccinelli

New Va. Gov. Lacks Authority To Change Abortion Rules, Argues Outgoing AG Cuccinelli

January 8, 2014 — Virginia Attorney General Ken Cuccinelli (R) on Friday issued an advisory opinion stating that Gov.-elect Terry McAuliffe (D) has no legal authority to implement a campaign promise to ease regulations for existing abortion clinics, the Washington Times reports.

McAuliffe, who defeated Cuccinelli in the governor's race and is scheduled to be sworn in to office on Saturday, in September pledged to issue a "guidance opinion" by mid-March that would exempt existing abortion clinics from complying with controversial new state regulations. The guidance aims to ensure that 18 abortion clinics can continue to provide services. Facilities in Fairfax City and Hampton Roads previously announced that they would close as a result of the stricter rules.

Some political observers responded that the governor has no authority to undo the rules. State Delegate Robert Marshall (R) requested that Cuccinelli issue an advisory opinion on the matter.

Cuccinelli's Response

In the opinion, Cuccinelli wrote that the "Virginia Constitution prohibits the Governor from unilaterally suspending the operation of regulations that have the force of law," adding that such a move would violate the separation of powers.

He wrote that a guidance opinion from the governor "is not legally sufficient to effectuate a change in or suspension of a validly enacted regulation," adding that the statutory basis for the "guidance document ... only may explain or amplify the relevant regulation or statute."

He concluded, "It is simply beyond a Governor's power to do so, and any such attempt is void" (Cella, Washington Times, 1/7).