RICHMOND, VA. – The Virginia Board of Health ignored legal advice from the state attorney general’s office earlier this month when it exempted existing abortion clinics from tough new regulations pushed by pro-life advocates. But at least some experts and civil liberties activists are now saying that attorney general’s office was wrong and that the board acted within its authority.

In a letter to State Health Commissioner Karen Remley, the American Civil Liberties Union of Virginia laid out a legal argument supporting the Board of Health’s authority to grandfather in existing abortion clinics from hospital-like construction requirements.

Abortion rights advocates have argued that the construction requirements would compel clinics to undergo expensive and unnecessary renovations that could force many of them to close. Similar regulations have been enacted across the country, according to NARAL Pro-Choice America. However, if the construction requirements were included in the Virginia regulations, they would become some of the strictest in the country.

A separate legal expert also told The American Independent that she thought the board acted within its authority because it amended the regulations to align more closely with the advice of medical experts.

The debate over the abortion clinic regulations began during 2011, when the General Assembly passed legislation requiring that any facilities performing five or more abortions per month be regulated as hospitals.

In response, the Board of Health passed temporary emergency regulations for abortion clinics last September and began drafting permanent regulations.

Draft recommendations developed by a team of medical experts exempted existing abortion facilities from the strict construction requirements that were intended for hospitals built after 2010. However, during a review of the proposed regulations, Attorney General Ken Cuccinelli’s office advised the Department of Health that it lacked the authority to exempt any abortion facilities from the 2010 requirements.

Ultimately, the Board of Health disagreed with Cuccinelli and voted on June 15 to approve regulations that exempted existing abortion facilities from the construction requirements.

Now, the regulations face executive review from Cuccinelli and Gov. Bob McDonnell, who are both staunchly opposed to abortion rights. They can either certify the regulations or send them back to the Board of Health for further consideration.

According to the attorney general’s office, the combination of two pieces of legislation required that the construction guidelines be included, even for existing facilities.

The first, Senate Bill 924 — which was passed by the General Assembly and signed by McDonnell in 2011 — required that abortion clinics be regulated as hospitals. It stated that the regulations should include minimum standards for construction, maintenance, operation, staffing, equipping, staff qualifications, training, disease prevention and disaster preparedness.

The second law, which Cuccinelli’s office said the board violated when amending the abortion clinic regulations, is Virginia Code 32.1-127.001. It instructs the Board of Health to promulgate regulations for the licensure of hospitals that include minimum standards for design and construction consistent with the Guidelines for Design and Construction of Hospital and Health Care Facilities.

But University of Virginia law professor Lois Shepherd, who specializes in health law, said she thought the Board of Health acted within its authority when exempting existing abortion clinics.

“The legislation could have said ‘in order to be licensed, abortion facilities must meet the 2010 construction guidelines,’ but it didn’t say that,” Shepherd said. “I think there’s a very good argument that the Board of Health had the right to determine that this doesn’t really apply to existing facilities if there is no planned expansion or redesign.”

Shepherd said the language in Virginia code 32.1-127.001 that specified requirements for “design and construction” should apply to new construction or expansions, but not to existing facilities.

“I think the attorney general has to rely on something other than 32.1-127.001,” Shepherd said. “That looks to me like a tortured interpretation of the law.”

In its June 20 letter backing the Board of Health’s decision, the ACLU argued that Cuccinelli’s position ran afoul of a Virginia law that requires the board to craft regulations that conform to the recommendations of medical experts.

“The Board’s statutory authority to regulate comes from Virginia code 32.1-127(A), which directs the Board to promulgate regulations for health care facilities ‘in substantial conformity to the standards of health, hygiene, sanitation, construction and safety as established and recognized by medical and health care professionals,’” the letter said.

“The experts who developed and wrote the 2010 edition of the Guidelines for Design and Construction of Health Care Facilities of the Facilities Guidelines Institute … explicitly said that they should apply only to new construction or new renovations,” argued the ACLU. “Applying these Guidelines to existing facilities … was therefore not in substantial conformity with the standards for construction and safety established and recognized by specialists.”

Shepherd agreed that 32.1-127(A), the part of Virginia law requiring that regulations conform to the recommendations of medical experts, lays out the Board of Health’s primary responsibility.

“The primary intent of the regulations needs to be the protection of patients and public health, not something else, whatever that something else may be,” Shepherd said. “The spirit of the board’s obligation is really stated well in Section A and the attorney general seems to be going against that with the interpretation he is asking for with 32.1-127.001.”

The ACLU also argued that Cuccinelli did not have the power to dictate the substance of Board of Health regulations.

“As its counsel, the AG’s advice can inform the Board’s action, but it cannot and should not decide it or force the adoption of one legally defensible policy over another,” the ACLU said.

A spokesman for Cuccinelli told TAI that the attorney general’s office simply provided advice to the Board of Health regarding the legality of its actions and did not involve itself in policy disputes.

“Our job as counsel is to advise our clients how to stay within the law when they are crafting regulations,” said Brian Gottstein, director of communication for Cuccinelli’s office.  “We make that determination solely on a legal basis, not on the basis of whether we agree with the policy or not.”

Gottstein said accusations that Cuccinelli attempted to dictate the contents of the regulations were “fiction.”

“The attorney general has no authority in this matter to ‘force’ the board to do anything,” Gottstein said. “This office advises its clients how to stay within the law, and clients decide whether to take that advice.”