Will Board of Health Break the Law?

Imagine my surprise late on August 25th to receive an official document published by the Commonwealth of Virginia with the following message.

Yes, you read that correctly.  An official state document, drafted by the Virginia Department of Health (VDH) and released in late August (and drafted on August 10), predicted the future outcome of a vote on abortion center health and safety standards and – shockingly! – the vote will be in Governor Terry McAuliffe’s favor!

Of course, we weren't the only people surprised to read this, members of the Board of Health who don’t plan to favor the Governor’s amendments were surprised as well.  Incredibly, the same document did not include a legally required summary of public comment in opposition to the amendments!

When we learned of this, we had to respond quickly.  But what to do?  Well, we already knew.

On Monday, I told you about a little known commission of the General Assembly, the Joint Commission on Administrative Rules (JCAR).  We learned of this commission in recent months and knew it had already been contacted about serious problems with the regulation process so far.  So, we immediately sent a letter to JCAR Chairman Frank Wagner (R-7, Virginia Beach) explaining our concerns and the importance of holding a meeting prior to the Board of Health’s scheduled vote tomorrow.

Last week, Senator Wagner responded to our concerns and scheduled the meeting for this morning.

And what a meeting it was! JCAR this morning sent a crystal clear message to VDH -  

1)    You broke the law, and
2)    If you vote to approve the amended regulations at tomorrow’s Board of Health meeting, you will be breaking the law.

Limited in power, JCAR did what it can, voting to immediately send a letter to the Board of Health demanding that they provide an explanation for their violations and informing the Board that it cannot legally go forward with a vote it had planned for tomorrow to water down abortion center health and safety requirements.

The JCAR members were outraged at how VDH and the Board of Health (now dominated by Terry McAuliffe’s pro-abortion appointees) published three weeks in advance of its public meeting that it had already voted to approve the regulatory changes!  A number of them rightly asked: what’s the point of anybody who opposes the changes even showing up or giving testimony if, as Delegate Scott Lingamfelter (R-31, Woodbridge) put it, “the fix is already in”?

Meanwhile, like a seasoned trial attorney, Senator Ryan McDougle (R-4, Mechanicsville) nailed down the Health Commissioner on how a vote tomorrow by the Board of Health to approve the regulations would be in clear violation of the statutory requirement that all public comments must be summarized and responded to at least five days prior to finalizing the regulations.  Senator McDougle literally read the Code section in question to the Commissioner, demanding to know how a vote can happen.

Delegate Tag Greason (R-32, Loudoun) hammered home the point by asking for confirmation that the Commissioner would instruct the Board that any action tomorrow on the regulations would be illegal. Sadly, the Commissioner ultimately would not commit to making a recommendation to delay!  Delegate Greason’s questioning of the Commissioner also revealed that the online version of the tainted regulatory document had still not been corrected, less than 24 hours before the Board of Health is scheduled to vote!

In the end, the decision now rests with the Board of Health:  vote tomorrow and prove that this has been a sham process from the start, or delay the vote.  Even then, however, the other violations of the law by the Board also talked about at today's meeting still prove the process has been a sham.  More on that tomorrow.