Virginia’s Next Attorney General Will Get to Decide Whether to Defend Anti-Choice Laws

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Analysis Politics

Virginia’s Next Attorney General Will Get to Decide Whether to Defend Anti-Choice Laws

Ally Boguhn

It is up to the attorney general whether to defend state laws—meaning whoever wins November’s election will be able to weigh in on whether to defend, for example, the constitutionality of the state’s GOP-backed abortion restrictions if they are challenged.

In a political landscape where state attorneys general are increasingly challenging the federal government and taking center stage in reproductive rights policy, the attorney general race in Virginia may be more important than ever. Democratic incumbent Mark Herring and Republican candidate John Adams are squaring off this November for one of the state’s most critical roles.

Virginia’s attorney general is responsible for providing legal advice to executive agencies, state lawmakers, and state officials, including the governor. It is up to the attorney general whether to defend state laws—meaning whoever wins November’s election will be able to weigh in on whether to defend, for example, the constitutionality of the state’s GOP-backed abortion restrictions if they are challenged.

Virginia’s attorneys general have garnered national attention for their roles in furthering or restricting abortion access. In July 2012, Herring’s predecessor, Republican Ken Cuccinelli, blocked Virginia Board of Health regulations that would have allowed abortion clinics in the state to keep their doors open despite medically unnecessary targeted regulation of abortion providers (TRAP) restrictions in the state. Cuccinelli, according to the Washington Post, “told board members that he believed they overstepped their authority and that he would not defend them from potential litigation.” The Board of Health later reversed its decision, and Cuccinelli certified the TRAP restrictions in the state.

But in May 2015, Herring reversed Cuccinelli’s opinion. The move opened the door for the state’s Board of Health to rewrite the regulations, and it in turn reversed its restrictions on clinics in September of that year.

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Herring, in an interview with Rewire, suggested that his predecessor’s history shows what is at stake this year for reproductive rights in Virginia. Herring noted that his opponent Adams supports the “medically unnecessary and intentionally burdensome regulations” on clinics. Indeed, Adams has promised to “fight to uphold strict standards for abortion clinics” in court if elected, according to his campaign website.

The candidates’ disagreements on reproductive rights and freedoms go beyond TRAP restrictions. In January, for example, Herring issued an official opinion on the request of state Del. Charniele L. Herring (D-Alexandria), stating that he believed a 20-week abortion ban would be unconstitutional and that “the legislation would likely result in a significant, costly and successful constitutional challenge against the commonwealth” if passed. Adams countered with a statement falsely claiming that a fetus can feel pain at that point in a pregnancy. He added that if such a law passed, voters “deserve to have it vigorously defended by their attorney general.” (A 20-week ban was introduced in December 2016.)

These opposing views served as fodder for Herring’s fundraising pitches: “My opponent, John Adams, is as anti-choice as they come,” claimed one October 6 email to supporters that highlighted Adams’ anti-choice history.

Adams’ campaign website also highlights “religious liberty” as a component of his platform. He claims—without offering evidence—that religious liberty “is under attack from activist judges and liberal bureaucrats who would leave people of faith defenseless against Washington and its accomplices in Richmond.” The platform goes on to tout Adams’ work attacking contraception access, including representing 15 Republican members of the U.S. Congress in an amicus brief arguing against the Affordable Care Act’s birth control benefit in Burwell v. Hobby Lobby. He argued against the mandate again in a brief written on behalf of law professors in the Court’s Little Sisters of the Poor v. Burwell case. His campaign website notes that Adams did this work pro bono.

“When the federal government tried to squelch the religious liberty of nuns and small business owners, I stood up for the freedoms of all Americans in the Supreme Court,” reads the website. In his platform, Adams vows to continue this work if elected (though he does not explain how).

Yet in a June debate Adams claimed he has “zero interest in limiting women’s access to birth control.” He argued that it was not a priority for him. “It’s not an issue I think about,” he said. “It’s not an issue I care about. I’m not limiting anybody’s access to birth control. It’s silly.” Adams claimed that his involvement in those judicial cases was about not forcing people to violate their religious beliefs—though, as Rewire has reported, an accommodation was already put in place for just this purpose by the Obama administration.

And in fact, the “religious liberty” efforts Adams refers to, also known as religious imposition efforts, “cover a range of legislation designed to shield private individuals and businesses from complying with nondiscrimination laws and to affirmatively deny services such as employment, housing, and reproductive health care based on a religious objection to that service,” as Rewire has written. In Virginia, the Republican-dominated state legislature has introduced a bevy of religious imposition laws in recent years—including an unsuccessful measure that would have permitted self-insured employers to refuse to offer coverage for certain kinds of contraception.

Adams’ platform also includes a plank on “defending our values,” under which he outlined his opposition to both abortion and marriage equality. He has the backing of the anti-choice group Susan B. Anthony List—the group’s Women Speak Out PAC supported him with an online advertisement this fall that attacked Herring’s record on reproductive freedoms and declared Adams a “pro-life champion.” The PAC has spent over $40,000 on the attorney general’s race in Virginia this election cycle, according to the Virginia Public Access Project.

Adams has never run for public office before, though he did clerk for Justice Clarence Thomas at the Supreme Court and worked as an associate White House counsel for President George W. Bush.

By contrast, Herring’s campaign site touts his experience “successfully [fighting] alongside his colleagues in Whole Woman’s Health v. Hellerstedt,” the 2016 U.S. Supreme Court decision that found Texas’ TRAP restrictions unconstitutional. “Defending women’s rights” is listed as a priority on his platform, and he notes in it that as a state senator he “opposed legislation to restrict a woman’s access to abortion, including personhood bills and Virginia’s infamous ‘mandatory transvaginal ultrasound’ bill.”

Speaking with Rewire, Herring called access to contraception and abortion care “fundamental rights.” He noted that reproductive-rights related issues such as TRAP restrictions “are going to come across the desks of attorneys general all across the country,” and he called for women to “have access to the full range of reproductive health services that they need and deserve.”

“I think women are fully capable of making their own health care decisions and I want to make sure that I’m doing everything I can to support them and their rights and their access to health care,” he said.

When he received an endorsement from NARAL Pro-Choice Virginia in June, the group’s executive director, Tarina Keene, praised Herring as “one of Virginia’s strongest champions for women’s reproductive health and freedom.” The organization has provided small financial donations to the candidate this election cycle. He was also backed by Planned Parenthood Virginia’s political action committee in August, according to the Washington Post, and received support from Planned Parenthood in past elections.

Since Republican President Donald Trump took over the White House, Herring has used the power of his office to stand up to several of the administration’s most extreme policies. He filed a lawsuit against the administration to halt its Muslim ban in January and signed onto a letter in July asking Congress to reaffirm that transgender troops could serve in the military. “It has certainly added to my workload,” he told Rewire when asked how his job had changed since Trump took office. “There have been a couple of instances in which the president overstepped important legal and constitutional boundaries and Virginians were hurt,” he said. “And in those situations I won’t hesitate to step in and fight for Virginians.”

When Trump moved to undermine the birth control benefit in early October by announcing new rules that claimed to be about “protecting the conscience rights of all Americans,” Herring was among a coalition of 18 attorneys general who swiftly moved to threaten the administration with legal action.

“Today’s decision by the Trump administration puts healthcare decisions in the hands of a woman’s employer, which is so demeaning, discriminatory, and dangerous that it’s hard to put it into words,” said Herring in a statement, going on to note that the state had anticipated the move and had already begun looking at legal recourse. “All women should have the freedom to make their own healthcare decisions, especially when it comes to something as personal as contraception and reproductive health.”

Herring told Rewire this week that his office is “looking into the actions of the other states and considering what actions we might be able to take here in Virginia.” Attorneys general in Massachusetts and Pennsylvania have already moved forward to challenge the law.

Before he took on the role of the Virginia government’s top lawyer, Herring served in the state senate. He had a 100 percent rating on NARAL’s 2012 Legislative Scorecard, indicating he voted that year against anti-choice measures such as forced ultrasounds. After Virginia Republicans succeeded in passing TRAP restrictions to further regulate abortion care in Virginia, Herring introduced two measures that would have overridden the restrictions, though both were ultimately unsuccessful.

Now, as voters are about to take to the ballot box, Herring noted that issues relating to reproductive rights “are going to come across the desk of the next attorney general.” He added, “it’s important for all Virginians to know that the attorney general will be in there to protect health care, to fight for women’s rights to access—for reproductive health services—instead of the other way around, trying to restrict them.”

John Adams’ campaign was unable to schedule an interview with Rewire by the time of publication.