He didn't come right out and condemn it, but Sen. Mark Herring, the Democratic nominee for Attorney General refused to offer support for Terry McAuliffe's stance on rolling back new regulations related to abortion clinics in Virginia.
McAuliffe, the Democratic nominee for governor, has said that when elected he would offer a "guidance opinion" that would allow his Health Commissioner to construct a plan to allow existing clinics to stay open to despite new and intense restrictions passed by the General Assembly and signed into law by Governor Bob McDonnell (R) in 2011.
Many of the existing clinics will be forced to close in order to comply with the regulations. The Virginia Board of Health initially set up a system to allow the clinics to be grandfathered in. However Attorney General Ken Cuccinelli, the GOP candidate for governor, informed the board he could not defend the grandfather clause if it were instituted. That forced the Board of Health back to the drawing board.
Cuccinelli has attacked McAuliffe's idea of a "guidance opinion", claiming it doesn't exist and if it did it would be an overplay of executive power to undo the practical impact of a law passed by the legislature.
Herring, who is locked in the tightest battle of the fall with Sen. Mark Obenshain (R), made it clear that he did not support the initial legislation, or Cuccinelli's handling of the Board of Health, but he would not endorse McAuliffe's guidance opinion plan.
"If we're going to have regulations like this I'd like to see that there is a fair process by which they get adopted," Herring said.
Herring believes that the idea of a grandfather clause for existing clinics is "routine", but he avoided the suggestion that he would endorse McAuliffe's plan if both are elected.
"What I'll do is follow the law," Herring said. "I think part of law and part of that role of the Attorney General is to make sure that when regulations are proposed that there is a good public process by which they are followed or their adopted."
McAuliffe has said that he came up with the idea of a guidance opinion from his campaign adviser Dr. Karen Remley. Remley is the former Commissioner of Health in the McDonnell Administration. She left McDonnell's cabinet after feeling disgruntled over the administering of the regulations.
Should both Herring and McAuliffe both be elected, Herring's opinion on the topic could be important. Herring would serve as the Commonwealth's lawyer and be forced to defend any challenge to the implementation of something like a guidance opinion.
It is obviously a complex legal question that could take some time and study for Herring should he be confronted with that challenge. But it could lead to an interesting situation in the early days of a new administration.
We talked to Sen. Herring on a number of topics, we'll share his entire interview later in the week.
Here is our exchange on the clinic regulations.