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Virginia Bill Allowing Individual Legislators to Contest Changes to Abortion Laws Would Subvert Separation of Powers

Jessica Mason Pieklo

Republicans in Virginia want to create "legislative standing" to let lawmakers defend anti-abortion restrictions in case Democrats won't.

In response to concerns that Virginia Attorney General Mark Herring may not defend new state abortion restrictions, Republicans in the state have proposed a new bill that would empower any state legislator to step in and defend state laws in court.

HB 706 grants “legislative standing” to any member of Virginia’s General Assembly to represent the state in any proceeding, in which “the constitutionality, legality, or application of a law” is at issue and where the “Governor and Attorney General chose not to defend” that law. The proposed bill challenges directly the traditional separation of powers outlined in both the U.S. and Virginia constitutions that dictate that it is the executive branch, and not the legislative branch, charged with enforcing and defending state law. But the law’s sponsor, Del. C. Todd Gilbert (R-Shenandoah), an attorney, was unconcerned that the law is likely unconstitutional, telling the Virginia Daily Press “I believe that when the legislature passes a law, the legislature should have the ability to defend it,” describing the bill as a “safety” measure.

It’s the second such “safety” measure put forward by Virginia Republicans after electoral losses late last year. Outgoing Attorney General Ken Cuccinelli recently issued a formal opinion stating that the governor cannot unilaterally suspend state regulations. Cuccinelli issued the opinion after another Republican, Del. Robert Marshall (R-Prince William), asked if Gov. Terry McAuliffe had the power to suspend recently passed regulations targeting abortion clinics and providers.

Republicans are not the only ones concerned about McAulliffe’s dedication to abortion rights. Reproductive health advocates and supporters on the left heavily criticized McAuliffe’s decision to reappoint William Hazel as secretary of health and human services. Hazel, who served under outgoing Gov. Bob McDonnell (R), played a key role in the passage of a Virginia law that forces patients to undergo and pay for ultrasounds prior to an abortion regardless if they are medically necessary and has been an outspoken opponent of both the Affordable Care Act and any corresponding Medicaid expansion.

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HB 706 was introduced late last week, suggesting that despite Democratic gains in November that many attributed to Republican over-reach on health care and reproductive rights, abortion rights and access remain a key legislative priority for Republicans in 2014.

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