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Herring’s Unconventional Favor For His Friends
By Stephen J. Rossie

Square2017 imageRICHMOND, VA – In what the media reported as a surprise move, late last week Attorney General Mark Herring filed a motion to dismiss a lawsuit brought by the abortion industry in federal court that challenges the constitutionality of Virginia’s abortion center safety standards. Not only is Herring adamantly pro-abortion (he has received tens of thousands of dollars from the abortion industry) he has established a dangerous precedent of not only refusing to defend Virginia’s laws, but of siding with the plaintiff.

But was it so shocking? Planned Parenthood — which filed the suit with another national group, the Center for Reproductive Rights, and the Virginia ACLU as part of a national campaign challenging states with similar laws — shrugged off Herring’s motion in a news release, saying it understood his responsibility while recognizing his "staunch” pro-abortion credentials.

In fact, Herring’s motion was lukewarm at best. It stated that many of the commonsense safety standards challenged in the suit — such as requiring a doctor to perform the abortion, that second and third trimester abortions are performed in a hospital, and that an ultrasound is taken prior to the procedure — are under "active review” while other changes should be considered only through the legislative process.

While that sounds more like a Federalist Society argument — and jumped on by state Republicans in an attempt to drive a wedge between Herring and his base — it’s a wink and nod to them. The "review” he cites is the attempt by the Board of Health to repeal a good portion of the safety standards. Those actions are under challenge in state court, where Herring is desperately throwing the full weight of his office at it in an attempt to win one for his allies. He is 0-for-2 so far as Henrico County Circuit Judge John Marshall has overruled both Herring attempts to dismiss that case and has allowed that trial to proceed.

He also gifted the abortion industry his analysis of the federal suit, which cites the definition of "hospital” in Virginia code to include abortion centers, setting the stage for another regulatory end-run. The problem for Herring there is that the legislative intent of the definition clearly means a surgical hospital as facilities such as nursing homes also are referred to as "hospitals” in the code.

The real concern Herring has is not legal — at least not in the lawsuit sense of the word. It’s timing. The abortion industry filed its challenge before the retirement of U.S. Supreme Court Justice Anthony Kennedy, the High Court’s chief voice in major opinions watering down states’ authority to responsibly regulate the abortion industry. Without Kennedy, an eventual decision by the Supreme Court could lock in Virginia’s current law.

Ironically, Kennedy’s opinions in those instances are nothing more than legislation from the bench that — if from an actual legislature in any other area of the law — he would have struck down as unconstitutionally vague (i.e., his undefined "undue burden” standard). Still more ironic is that Kennedy’s probable replacement, and one not so likely to agree with the abortion industry’s challenge, really is a member of the Federalist Society.

Stephen J. (Steve) Rossie is a Richmond-based public and government relations consultant. He has been a General Assembly lobbyist since 2006 and has written about Virginia government since 2007.


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