by Claire Guthrie Gastanaga, Executive Director
Originally posted on Pundits' Podium
Today the Board of Health voted not to include a “grandfather clause” in the proposed rules that will govern abortion clinics — a decision that could mean that some clinics now operating in Virginia will be forced to close and women will have less access to comprehensive health care. Clinics may have to re-engineer their current facilities to comply with regulations normally applied only to new facilities or facilities undergoing planned major renovation. And, they will have to do so despite compelling testimony from medical professionals that these building code requirements have little or nothing to do with patient safety.
The Board’s vote and its potential negative consequences are bad news for Virginians who think public officials making health care policy decisions should base them on medical fact rather than religious or political preferences. But, the news is even worse if you believe in the democratic process and open government.
Today’s vote established that the Attorney General is the most powerful public official or “branch of government” in the Commonwealth, wielding power in back-room meetings and legal advice memos. By threatening members of the Board of Health with legally impossible lawsuits and nonexistent liability, the Attorney General was able to substitute his judgment for the Board’s on a health policy issue, overriding the statutory authority of a policy board appointed by the Governor and confirmed by the legislature.
The Board of Health is made up of Virginians asked to volunteer to serve all of us on a board delegated the authority to make health policy by the legislature. Why would any citizen want to take on such a responsibility when their lawyer suggests that he will not defend them simply because he doesn’t like the decisions they make in good faith according to their statutory authority?
During my eight years in the Attorney General’s office, I was often asked by members of public boards, “what happens if I get sued for something I do as a board member?” My standard answer was that our office would be there to defend them so long as their action was not criminal, an intentional tort or purposely discriminatory. I pointed out that the state has a Division of Risk Management to help minimize legal exposure and indemnify public officials acting in good faith. The current Attorney General’s position seems to be that, unlike members of private corporate and nonprofit boards, citizens who choose to serve the Commonwealth now do so at their own risk, knowing that, at any time, the Attorney General might choose to deny them a defense simply because of his or her ideological leanings, rather than any objective assessment of the legality or defensibility of board members’ actions.
While the current Governor likely supported the outcome forced by the Attorney General’s tactics today, he and future Governors should hesitate to endorse a strategy that eviscerates their power by subjugating the independent judgment of their appointees on policy boards to the political agenda of an independently elected Attorney General.
Finally, all Virginians should decry any process as undemocratic where a public body 1) refused to consider holding a meeting on an important public issue at a facility that could accommodate the large number of people interested in the body’s decision; 2) limited the number of people allowed to speak to a tenth of those present; 3) made no provision to ensure that equal time was allocated to both sides of the question before them; and 4) prohibited its members from speaking to members of the public during breaks in the meeting.
Our government is supposed to be a government of the people where all of us have an equal right to petition the government and to have our voices heard. Today’s events suggest that Virginia’s government is a government where the people’s voice is to be silenced or manipulated and one official’s voice is heard over all others.
We deserve better.
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