Friday, April 21, 2017


Lawsuit Filed Against McAuliffe Administration

- Challenges actions taken by Dept., Board of Health - 

          RICHMOND–The Family Foundation of Virginia today announced that an administrative appeal has been filed in Henrico County Circuit Court against the administration of Governor Terry McAuliffe regarding violations of state law by the Department and Board of Health during the abortion center health and safety standards regulatory process.  
          “In the appeal filed, appellants argue that during the nearly three-year process of amending the standards, the administration and Board violated the Administrative Process Act, various other portions of the Virginia Code, and the Governor’s own Executive Order 17 regarding the regulatory review process, more than twenty times,” said Victoria Cobb, President of The Family Foundation.  “Virginia’s Administrative Process Act is the law.  It exists to provide legal boundaries and process for unelected regulatory bodies, to ensure public input throughout the regulatory process and to provide a means to hold these agencies accountable when they go beyond the scope of their authority.  This administration chose to simply ignore the law in its desperate attempt to pay back the abortion industry.”

          At a press conference today, Cobb referenced one of the alleged twenty-two violations of the law cited in the appeal, discussing where 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).  Although the scope of an agency’s proposed regulatory action is limited by law to the parameters set forth in its NOIRA (EO-17 also specifies that no issues outside NOIRA are to be considered later), the Board significantly expanded the object of its rulemaking by amending a total of 21 distinct sections both within and beyond the original six, and thus well outside the scope of what was set forth in its NOIRA.  
          Perhaps most damning, the Agency’s own Proposed Regulation Agency Background Document states that any amendments outside the scope of the NOIRA “shall not be considered within this regulatory action.”  Furthermore, the Commissioner of Health, Marissa Levine, stated during the 9/17/15 Board of Health meeting that,

“. . . since the June 4th Board meeting, VDH had received additional proposed amendments to the regulations from various interested parties. However, after consultation with the Office of the Attorney General (OAG), all but three of the additional proposed amendments were not included as part of VDH’s recommended amendments since they were determined to be outside the scope of the Notice of Intended Regulatory Action (NOIRA) [emphasis added]. Three of the additional proposed amendments, based on consultation with the OAG, are considered technical amendments and therefore can be considered to be within the scope of the NOIRA.”  

          In other words, the Board and Commissioner were well aware of the law, with its requirement to abide by the NOIRA, but violated it anyway.

          Cobb said, “In this case, the Department and Board initially indicated they would review and amend only six areas of the regulations, and instead ended up changing more than 20.  The public had no ability to weigh in on most of these changes until after the Board had already voted.  In fact, in some cases, amendments were not made available to the public until weeks after they were voted on by the Board.  This was regulating by stealth.  If allowed to stand, the McAuliffe administration has invented a new way to regulate in Virginia that essentially blocks the public and the regulated entities from due process.”

Cobb also stated, “Throughout the nearly three-year regulatory process, the Department and the Board, in conjunction with the Commissioner, failed to follow legally required precedent.  The Board was made aware of its violations by certain Appellants or by others, and some of their objections are cited in Board documents.  However, a number of those objections were intentionally excluded from the Board’s Minutes by various votes of the Board, despite the urging of several Board members, including the two who are Appellants.  

          “Let that sink in.  Board members are so aware that their actions violate the law that they refused to put objections to the votes in official minutes in a sad attempt to cover up their actions,” said Cobb.

          “The Family Foundation fully supports the actions taken by these appellants,” added Cobb.  “The irony here is that the administration didn’t have to violate the law.  It has the votes to make all the changes it wanted.  But in its zeal to appease the abortion industry and with its dismissiveness of the rule of law it now finds itself in court.  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.”

          The Family Foundation is paying the legal fees for one appellant in the appeal, Itzel Melendez, from Richmond.  Last month, Mrs. Melendez said, “In the past, I had occasion to visit an abortion center for the purpose of obtaining an abortion.  I am participating in this case because I am concerned that without basic health and safety standards, abortion centers will operate in a way that could put my health at risk if I ever decided in the future that I needed their services.  The standards that were in place were there to protect women like me from harm.  Without them, I am no longer confident that my health would be protected.”
          Delegate Kathy J. Byron (R-Forest), one of the appellants, stated, “Our nation and our commonwealth were built upon foundations embodied by the rule of law.  With bipartisan and bicameral majorities, the General Assembly enacted legislation to ensure women would receive the protections of health and safety standards at abortion centers.  Many of the Board’s decisions have contradicted the clear intent of the General Assembly, violating the laws that govern the regulatory process.  Our hope is that the Court will rectify this situation by requiring the current administration abide by the law.” 

         Appellants in the case include Virginia Board of Health members Megan Getter and Henry Kuhlman, Delegate Kathy Byron, and Itzel Melendez of Richmond.  The attorney representing Mrs. Melendez is Dan Carrell of Carrell Blanton Ferris and Associates, PLC, Richmond.