Terry's Way

In its blind haste to protect the $1 billion abortion industry by gutting Virginia’s abortion center health and safety standards, Governor Terry McAuliffe’s administration and his hand-picked members of the Board of Health violated state law that guides the regulatory process multiple times in multiple ways.  Of course, considering it’s Terry McAuliffe acting on advice from Mark Herring, this should come as little surprise to anyone. Neither has exhibited much fidelity to the law since being in office.

Consequently, to this point, we’ve blamed the mistakes on the administration’s incompetence and/or complete lack of respect for the law.  Perhaps, but if nothing changes, the precedent set could have dramatic consequences.

If allowed to stand, the process the Governor used to pay back the abortion industry could become a model for ignoring long-standing state law that guides what is supposed to provide the public and those being regulated with an abundance of transparency and opportunity for input.

Essentially, the Administrative Process Act (APA) provides agencies and boards with the process to adopt regulations.  One of the initial responsibilities of the agency or board involved is to publicly announce what it plans to do – the Notice of Intended Regulatory Action, or NOIRA.  In the case of amending existing regulations, like the abortion center health and safety standards, the NOIRA is supposed to provide the public and affected persons notice of what areas of the regulations may be changed.  This provides transparency for everyone involved.  It’s also the, you know, law.  The thing the McAuliffe/Herring regime finds so bothersome. 

Thus, in 2014, the initial NOIRA developed by the Department of Health stated that six of the 27 sections of abortion center health and safety standards would be reviewed for potential amendment. This gave interested parties the opportunity to weigh in and make suggestions.  But by the time the Board of Health took its final vote on the amendments on Monday, around 20 of the 37 sections of the standards had been changed, and several  of those amendments had never been made public or had any public input whatsoever.  This is why several Board members objected over and over again to amendments that were “outside the original NOIRA.”  They were, in fact, illegal.

Now, let’s reverse this and put it in the context of adding new regulations instead of removing them.  The new McAuliffe way provides a path for over-zealous regulators who aren’t interested in or care about the input of those being affected by the regulations.  You simply adopt an NOIRA at the start of the process that is very narrow, quietly work the process and then at the very end, drop all the additional regulations you had planned all along but didn’t want the public or those being affected by the regulations to know about.  Outside of dotting a few Is and crossing a few Ts, the deal is done.  No transparency, no accountability, no problem.

Welcome to Terry’s new Virginia.

Because the issue of abortion has overshadowed the process of providing standards of care for abortion centers, few who don’t otherwise care about “social issues” are likely paying attention, which is exactly why it’s the perfect issue to test run the new process.  That said, based on the first three years of his administration, I highly doubt this was all planned.  More likely, they tripped into the new process by mistake while simply ignoring the law. 

Regardless, if allowed to stand, you can count on this scenario playing out again in the future, only next time some highly disliked industry is going to be the victim.  And those who dismiss this instance as “social issues” not to be bothered by will be the ones loudly protesting the unfairness of it all.