Henrico Circuit Court judge John Marshall has released his decision allowing an administrative appeal against the state Board of Health to proceed. In doing so the judge rejected the arguments of the McAuliffe administration and its Attorney General that individual Virginians do not have the right to challenge regulations that violate other provisions of state law. The judge recognized that two appellants in the case had "standing" to bring the appeal.
“The judge’s decision is a blow to Terry McAuliffe's and Mark Herring’s effort to prevent citizens of Virginia from challenging actions by the government that they deem illegal,” said Victoria Cobb, president of The Family Foundation. “In its zeal to appease the abortion industry and with its dismissiveness of the rule of law, the McAuliffe administration acted outside the law. The regulatory process has rules that must be followed. Again, this appeal is about that legal process and this administration’s ignorance of or disdain for that process. Judge Marshall’s decision is a first step in holding them accountable for their actions.”
Judge Marshall heard oral arguments regarding “standing” in a Henrico Circuit Courtroom on Friday, August 11. Arguing on behalf of the McAuliffe administration, a deputy Attorney General for the Attorney General's office claimed that none of the appellants challenging the Board of Health’s actions in watering down abortion center health and safety standards had the legal right to bring their case. Judge Marshall's decision to recognize standing for two appellants advances the case to arguments over the merits of the claims by the appellants.
In their appeal, appellants alleged twenty-two violations of the law. The Virginia Department of Health (VDH) initially listed six specific sections of the abortion health and safety standards in which it planned to propose particular amendments. Those six sections were stated in the Department’s original “Notice of Intended Regulatory Action” (NOIRA) Agency Background Document. Although the scope of an agency’s proposed regulatory action is limited by law to the parameters set forth in its NOIRA, the Board significantly expanded the object of its rulemaking by amending a total of 21 distinct sections both within and beyond the original six, thus well outside the scope of what was set forth in its NOIRA.
“Regardless of one’s belief about the merits of basic health and safety standards for abortion centers, all Virginians should care about the rule of law,” added Cobb. “Over and over again Terry McAuliffe and Mark Herring have sought to undermine the principle of the rule of law. Our hope is that they will be held accountable for their actions by the courts.”