FamilyFoundationBlog.com

Just two months before leaving office, former Governor Tim Kaine left Virginians an unwanted present in the form of proposed changes to adoption guidelines for private agencies (see the Washington Post Virginia Politics Blog). These proposed regulations — by a Social Services Board still dominated by Mr.Kaine’s appointees — slowly working their way through the process, seek to force private adoption agencies to place children in foster care or for adoption with parents irrespective of faith or sexual orientation. It would force faith-based adoption agencies to either abandon their principles or cease providing adoption services (as did Catholic Charities in Massachusetts, after more than 100 years, when that state’s Supreme Court imposed such regulations by judicial fiat).

The proposal under discussion here goes far beyond any policy currently in Virginia law. The Virginia Code clearly details who is eligible to adopt. In § 63.2-1201.1, it plainly states:

Nothing in this section shall be construed to permit any child to have more than two living parents by birth or adoption, who have legal rights and obligations in respect to the child, in the form of one father and one mother.

There is no mistaking Virginia’s intent. The current regulatory proposal, which includes prohibition of discrimination based on sexual orientation, contradicts the intent of the General Assembly.

Nondiscrimination policies that include sexual orientation, whether enshrined in law or implemented through internal constructs, and regardless of their legal weight, highlight the inevitable and unavoidable clash between the unalienable fundamental right of religious liberty and the postmodern era of sexual freedom. While one may agree or disagree with the actions of individuals or private organizations that express their faith in these ways, their fundamental right to do so is at risk with these proposed regulations. Faith-based family organizations have assisted children for decades without unnecessary intervention by government entities. It is very clear that homosexual special interest groups have no concern with preserving religious liberty in pursuit of their political agenda.

Upon learning about these proposed regulations weeks ago, The Family Foundation immediately contacted the governor’s office. At that time, we were assured that Governor McDonnell does not support the current non-discrimination proposal and the current proposal would not stand. To ensure our voice was known where it needed to be, we submitted our official public comment and encouraged pastors to do so as well. After the public comment period closed, Governor Bob McDonnell publicly weighed in, telling the Washington Post:

I know I had said during the campaign that I would essentially keep our adoption laws — which I think are good — the way they are now. … I don’t think we ought to force Catholic Charities to make [the proposed regulations] part of their policy or other similar situated groups. Many of our adoption agencies are faith-based groups that ought to be able to establish what their own policies are. Current regulations that say you can’t discriminate on the basis of race, color or national origin I think are proper.

Since then, concern has mounted based on the circulation of incorrect information stating Governor McDonnell must act by April 15. However, this is an incorrect interpretation of a section of the Code (§ 2.2-4013) that details the time frame for the Notice of Intended Regulatory Action stage, not the proposed stage. The public comment website shows that the adoption regulations are completing the proposed stage, not the NOIRA stage.

A chart published by the Virginia Department of Planning and Budget is extremely helpful in understanding how the circuitous regulatory process works: The proposed adoption regulations currently are in the bottom box of the middle column (not the second box of the first column). Correct reading of Virginia Code and regulatory process shows that the Board of Social Services has no less than 15 and no more than 180 days from April 1 (April 16 through September 28) to adopt the proposed regulations and submit them for full executive branch review. As displayed in column three of DPB’s chart, the proposed regulations must then pass several more reviews prior to final acceptance, including reviews by DPB, the corresponding cabinet secretary, possibly by the attorney general (see Attorney General Ken Cuccinelli’s stated disapproval in the Washington Post) and the governor, then go through at least one more public comment period. The Department of Social Services already has amended the regulations and will present these changes to the Board of Social Services at an upcoming meeting. During any of these stages, the governor can reject or make changes to the proposal.

This adoption proposal, which tramples religious liberty, is a significant overreach through regulation into uncharted waters prohibited by Virginia Code and Virginia Constitution and will not be tolerated. The Family Foundation has been actively involved in seeing that these proposed regulations are not adopted and will continue to monitor the issue very closely.

Speaking of Virginia’s lawsuit against ObamaCare: Remember all the liberal hysteria regarding all the money Attorney General Ken Cuccinelli supposedly is spending on the constitutional challenge to the federal health care law (Richmond Times-Dispatch) — as if government spending has ever been an issue with liberals? Never mind that he is defending Virginia law (the Virginia Health Care Freedom Act), which it is his duty to do.

Where are the howls of disgust by the same people now that the Obama Justice Department refuses to agree (Times-Dispatch) with the Attorney General for an expedited appeal to the U.S. Supreme Court (Washington Examiner)? Without such an appeal, we’re talking at least two cases in U.S. Courts of Appeals, at least another year or more of legal work and court proceedings, endless briefs and motions, travel from Washington to Richmond and Atlanta, meetings, hundreds of hours of federal government employee time and who knows what else it takes to try a case these days — only this will be two cases simultaneously, not to mention any further cases that are filed in federal district courts by other states or aggrieved parties. It’s no exaggeration to say the cost could be in the millions. That’s a lot more than the $350 it cost the Commonwealth to file its case in Federal District Court for the Eastern District of Virginia . . . but a lot less than the $1.1 billion it will cost Virginia to implement ObamaCare. The pricelessness of the hypocrisy is passed only by the reality of the true costs.

This is the first in a series about key issues facing this year’s General Assembly.

Last year, The Family Foundation successfully advocated for the passage of one of our top priority bills: the “Baby Bill.” While the “Baby Bill” closed a loophole in Virginia law that previously allowed the killing of a child just moments after birth, this year we hope to build on that success by taking the protection of life one step further with the passage of legislation that would create a wrongful death statute for the unborn.

The Wrongful Death bill (HB 1440, the Senate bill has yet to be numbered) patroned by Delegate Bob Marshall (R-13, Manassas) and Senator Jill Holtzman Vogel (R-27, Winchester) would provide protection for the unborn in cases where they lose their life due to negligence of another.

While Virginia’s Code does include a fetal homicide law, the same unborn life, taken without intention, or premeditation, elicits no penalty. Improving our law to provide for a civil penalty in the cases of fetal manslaughter is essential.

Virginia’s current wrongful death law operates in accordance with the “born alive rule.” The born alive rule dates back to a 1940s federal court decision declaring that a child could recover damages for injury caused in utero once they were born. By extension, if a baby is born alive (though sometimes barely and only through artificial means) and then dies, a parent can then pursue a wrongful death cause of action for the injury in utero.

Approximately 40 states have gone beyond the born alive rule and now allow for pre-birth wrongful death suits for injury caused to a fetus while in utero. The Wrongful Death bill would bring Virginia in line with current law in the vast majority of states. It defines life as beginning at conception and therefore has the practical effect of expanding the state’s wrongful death statue to encompass all unborn children. After all, an unborn life is not only of value when it is wanted by the mother or when its life is intentionally taken by another.

Kelly Decker, from Glen Allen in Henrico County, is the biological mother of a five-year-old girl. Kelly desires the ability to raise her daughter free from the interference of an unrelated third party. Reasonable, no? Unfortunately, Virginia law isn’t so sure. Although the way in which Kelly’s story came to be is unfortunate, her story is a chilling reminder of the growing threat facing parental rights.

Kelly had dreamed for years of being a mother. Unmarried at 33, Kelly, while dating both men and women, began rounds of in vitro fertilization with an anonymous sperm donor. In 2002, Kelly began a same-sex dating relationship with Cathy McCarthey and, two years later, Kelly’s artificial insemination was successful and she gave birth to a daughter. Although Cathy and Kelly shared no civil union or marriage, neither of which is recognized as legal in Virginia anyway, they bought a house and moved in together. Two years later, they broke up and Cathy eventually moved out. As far as Kelly was concerned, that was the end of her interaction with Cathy.

But two years after their breakup, Cathy filed suit in Henrico County Juvenile and Domestic Court demanding either visitation rights or custody of Kelly’s daughter, despite the fact that Kelly is the only parent listed on her daughter’s birth certificate. Cathy stated that Kelly’s daughter would suffer harm from their separation.

Legally, what constitutes a parent and, therefore, merits visitation? Along with biological parents, Virginia law recognizes adoptive parents, genetic parents, and surrogate parents. Some states, excluding Virginia, include “de facto parents.” De facto parents are typically defined as someone who lives with the child at least two years and shares at least 50 percent of the care taking role. In 2008, the Virginia Court of Appeals heard Stadter v. Siperko (see opinion) — a case in which a woman claimed to be a de facto parent of her ex-girlfriend’s child and thus demanded visitation rights. In this case, the women had planned the child’s conception together and split the cost. Despite this fact, the judge ruled that the child did not suffer significant harm from separation from the nonbiological parent and visitation rights were denied (LifeSiteNews.com).

In a similar case, Damon v. York (see opinion), the Virginia Court of Appeals denied visitation rights to a woman who married her girlfriend, who already had a child, because Virginia did not recognize the marriage that took place in Canada (see Style Weekly). Kelly and Cathy’s case is unique in that the two shared no legal relationship, Kelly’s name was the only parent listed on her daughter’s birth certificate, Cathy never adopted Kelly’s daughter, and Cathy did not share in the planning or cost of Kelly’s conception.

Unfortunately, for Kelly and her daughter, in January 2010, a judge ruled that Cathy did indeed have standing to request visitation rights. The judge relied on a portion of Virginia law that reads:

In any case involving the custody or visitation of a child, the court may award custody to any party with a legitimate interest. … ”legitimate interest” shall be broadly construed to accommodate the best interest of the child.

By moving in with Cathy, Kelly — as determined by the judge — gave Cathy a “legitimate interest” in seeking visitation rights with her daughter. Even though the judge has not yet ruled on visitation, Kelly’s daughter was scheduled to meet with Cathy and a counselor to “begin the possible re-unification process.”

While Kelly’s story is riddled with unfortunate choices and difficult issues, this struggle is ultimately about parental rights. Kelly, as the biological mother of her child, is fighting for the right to make decisions that are best for her child without unwelcome intrusion from unrelated third parties and activist judges. Courts should not allow for the usurpation of a biological (or adoptive) and fit parent’s decisions, no matter what we may think of those decisions.

If the judge in Kelly’s case rules against her, imagine what that could mean for a single mother who invites a babysitter or roommate into her home. Conceivably, the babysitter or roommate could claim “legitimate interest” in visitation rights, or worse, custody of the child. While there is strong precedent in Virginia due to Stadter v. Siperko and Damon v. York, Virginia’s “legitimate interest” law is entirely too broad. Changes must be made to increase the protection of parental rights in Virginia.

They are not “clinics” as they are commonly called. Clinics are places you go to get well. Rather, they are abortion centers. Women do not get well at a Planned Parenthood abortion center. In fact, in Virginia, a woman’s health may be in danger at an abortion center, as the commonwealth enforces no safety regulations at such facilities. Recent news out of New Jersey and Maryland confirm the danger women face in these unregulated abortion centers.

On Wednesday, New Jersey suspended Dr. Steven Brigham’s medical license. Dr. Brigham is an abortionist who owns American Women’s Services Inc., headquartered in New Jersey, but also operates abortion centers in Maryland, Pennsylvania and Virginia. Dr. Brigham’s manipulation of the system recently came to light (resulting in the suspension of his license) when the uterus and small intestine of one of his clients ruptured during an abortion.

This isn’t the first time Dr. Brigham’s license has been suspended or revoked. He was cited in two botched abortions in New York — resulting in the revocation of his New York license — and has shady standing in other states.

It was Dr. Brigham’s routine to begin third trimester abortions in New Jersey (where third trimester abortions must be done in a hospital) and then caravan with his clients to Maryland (where they can be done in so-called “clinics”) where he finished the procedure. In New Jersey, Dr. Brigham had no hospital admitting privileges, no OB/GYN training, and no medical permission to perform third trimester abortions (hence the get-away to Maryland).

However, Dr. Brigham was barred from practicing medicine in Maryland as the result of another botched procedure in the mid-1990s. But never mind about that. It wasn’t going to stop him. He simply listed George Shepard, Jr., an 88-year-old disabled physician, as the physician of record to cover for his proceedings in Maryland — a move that is a felony under Maryland law.

Dr. Brigham rationalized his actions, stating that he believed Dr. Shepard was in the office at the time of the abortions. However, Dr. Shepard suffered a stroke some time ago, leaving him incapable of assisting in case of an emergency during Dr. Brigham’s risky third trimester abortions. Medically responsible? Not at all.

According to records, Dr. Brigham’s clients were not even aware that they would have to travel to Maryland for the completion of their abortions. The abortion industry has proven to be quite profitable for people who, like Dr. Brigham, routinely perform abortions, which likely explains his “creativity.”

Is Dr. Brigham the only disreputable abortionist operating in Virginia and neighboring states? It’s hard to tell. However, since abortion center reporting and inspections are not required here, unlike at other surgical facilities, it’s virtually impossible to know for sure.

If Dr. Brigham had caravanned to Virginia instead of Maryland on this particular occasion, the chances that his client’s complications would have been linked to a botched abortion are slim to none. Additionally, no emergency equipment (defibrillator, hemorrhage equipment, etc.) is required at Virginia abortion centers and therefore a Virginia facility may not have had the ability to even save the woman’s life.

The health and safety of women demands the arraignment of men like Steven Brigham. Virginians must demand a higher level of professionalism and medical aptitude from abortion providers and facilities. To address this critical issue, The Family Foundation will continue to advocate for increased safety and regulation of abortion centers in Virginia in future General Assembly sessions.

We reported on Wednesday that a same-sex couple was denied the family discount rate to join a Richmond gym, American Family Fitness. Quite a commotion ensued among homosexual activists when the blog gayrva.com first reported it. Then WTVR-TV/CBS6 picked up the story and even asked us for comment, which it did not use (see viewer comments which appear overwhelmingly pro-family). However, it interviewed Delegate John O’Bannon (R-73, Henrico), who pretty much nailed it.

American Family Fitness has every right to establish its membership rules and pricing policy. It is, after all, a private business. Although Virginia law pertains only to the commonwealth and its political subdivisions, American Family chose to model its policy on Virginia law, which recognizes marriage as one man and one woman. That is commendable. 

Mind you, American Family didn’t bar the individuals from joining the gym (and they did join). But it did not offer them a discount reserved for traditional families. There are options for those who disagree with that policy. It is ironic, though, that those who scream for “choice” and affect a libertarian pose in their rhetoric, in practice want a politically correct, secular progressive uniformity that, in effect, limits options. 

A Richmond business embeds traditional values in its membership policy, while Delegate John O’Bannon speaks beyond the hype on the issue.

This simply is astounding. The same haughty, know-it-all elites who blast Virginia Attorney General Ken Cuccinelli for doing what he is sworn to do (uphold Virginia law, see Richmond Times-Dispatch), who say he is less than intelligent and “wasting taxpayer dollars by filing frivolous lawsuits he can’t possibly win,” at the same time hold up as an intelligent sophisticate  U.S. Attorney General Eric Holder, who not only can’t utter the words “Islamic radical” (much less “terrorist”), but then takes aim at his fellow Americans (see Washington Post’s Greg Sargent)! What does that tell you?

In his own words, yesterday in a House committee hearing, stumbling and bumbling to a simple question from U.S. Representative Lamar Smith (R-Texas):

The pride of the Left: Eric Holder. Enemies? What enemies?

But why identify enemies now when you’ve already pegged them? Earlier in his term he called Americans “cowards.” Nothing like hammering the people you represent.

Holder: Our only enemies are Americans.

Then there’s this: Remember Madam Speaker’s onslaught against Tea Partiers? Anyone who disagrees with Pelosi, who has a different opinion, is demonized and lied about (the “swastika” comment). Agree or be damned! 

If you don’t like her Pelosi’s policies, you’re a NAZI.

Annotations & Elucidations

Ashcroft Envy?

Virginia Attorney General Ken Cuccinelli has reminded us of a move by then-U.S. Attorney General John Ashcroft in 2002, who had the topless female Spirit of Justice statue covered in the Great Hall of the Department of Justice. In Mr. Cuccinelli’s case, he wanted to issue a new lapel pin with a modified Seal of the Commonwealth, which features an exposed breast of the Roman goddess Virtus, that would be fully clothed. He said it is a replica of an old version of the seal. Knowing the AG’s love of history, that must be true. Yet, the ensuing media racket persuaded him to revert to the standard issue. Unsurprisingly, the same people who have created this disproportionate distraction over this incredibly minor deal are the same ones hammering him for “distracting and frivolous” actions fighting the EPA and ObamaCare, though that is what he is sworn to do — uphold Virginia law. But blowing up minutia to cover for a lack of substance is never a consideration for the left.

In the News: The prayer State Police Chaplain prayer policy continues to make news, even nationally, and we’re along for the ride in the three of the first four links below. The AG makes headlines for other reasons, as well. He has a 100-day review in the Richmond Times-Dispatch (where you’ll find more Family Foundation quotes) and he’s made more national headlines requesting — under Virginia law — documents from a former U.Va. professor who may have been involved in deceptive “science” and defrauded the commonwealth out of hundreds of thousands of dollars in grant money.

In Analysis, Erica Werner of the AP may not have a job tomorrow after the White House reads her piece documenting what it says about its actions on the Gulf oil spill aren’t exactly the truth. Also, according to the AP, as many as 80 Dem Congressional seats now are in play; and Marc Thiessen reports that Senator Jim Demint (R-S.C.) is leading a conservative revolution in GOP Senate primaries. In Commentary, it’s Larry Kudlow on money and Star Parker on Life. If that doesn’t sum it up, nothing does.

News

*McDonnell strikes a balance, conservatives rethink support (Washington Post)

*Virginia’s new policy on prayer policy (Newsweek/Washington Post)

*Va. governor lifts ban on police chaplains’ sectarian prayers (Associated Baptist Press)

*Cuccinelli draws praise, derision (Richmond Times-Dispatch)

State attorney general demands ex-professor’s files from University of Virginia (Washington Post)

Cuccinelli goes for a more modest version of the state seal (Richmond Times-Dispatch)

AG Cuccinelli drops new lapel pin to get away from distractions . . . (The Shad Plank Blog)

Cuccinelli ditches lapel pin with altered Virginia seal (Richmond Times-Dispatch)

Cuccinelli yanks lapel pin with breast-plate-covered goddess (Norfolk Virginian-Pilot)

Franklin County activist to head 5th District GOP (Richmond Times-Dispatch)

Independent says he would run if Hurt on ballot in 5th District (Lynchburg News & Advance)

National News

Attorneys agree to block on Oklahoma abortion law (Washington Post)

Union: Va. Firm’s Ads chiding Ark. Senate candidate ‘racist’ (AP/GOPUSA.com)

Report: Congress makes too many vague laws (AP/GOPUSA.com)

Dobson changes mind, endorses Paul for Ky. Senate (AP/GOPUSA.com)

Analysis

Virginia Attorney General goes after Mann and UVA (Anthony Watts/Watts Up With That? Blog)

Leading the charge for GOP insurgents (Marc A. Thiessen/Washington Post)

SPIN METER: There since Day One? Maybe not (Erica Werner/AP/GOPUSA.com)

GOP expands political playing field; Dems slipping (Liz Sidoti/AP/GOPUSA.com)

Commentary

The Left Loses Its Way by Abandoning ‘Third Way’ (Michael Barone/GOPUSA.com)

The NAACP and Abortion Politics (Star Parker/TownHall.com)

Race and Resentment (Thomas Sowell/GOPUSA.com)

Obamacon Doves vs. Hard-Money Heartland Hawks (Larry Kudlow/GOPUSA.com)

‘Government is Us’ (Richard Olivastro/GOPUSA.com)

Far left liberal Northern Virginia Delegate David Englin (D-45, Alexandria) has pursued some real follies in the General Assembly — and that’s putting it politely. Bills to punish people by raising gas taxes and restoring the death tax, to name a few. So pardon us if we think it more than slightly ironic that he, of all people, is complaining about the cost of the suit filed in federal court (Washington Post Virginia Politics Blog) today by Attorney General Ken Cuccinelli to overturn, as unconstitutional, the government takeover of health care, made official with President Barack Obama’s signature a few hours ago.

Delegate Englin launched a Web site that will connect, by phone, government-run health care supporters to complain to the AG (I guess looking up the phone number or e-mail address is too much yeoman’s work for certain elitists). Quote the delegate:

This is an egregious waste of taxpayer dollars that could stop Virginians from enjoying the benefits of health-care reform.

Hmmmm. Let’s do the math on this one: A few thousand budgeted dollars to do what the AG is sworn to do versus more than $1 trillion in new, unbudgeted federal spending for something proven to fail everywhere it’s tried, plus more than $500 billion in new taxes, hundreds of new business and job killing regulations, as well as 118 new federal agencies and 18,000 new IRS employees to enforce that we all buy a government approved health insurance policy (unless, of course, we’re 26 and still slacking and can mooch of the parents). Which is greater?

Apparently, Delegate Englin thinks it’s “frivolous” to defend Virginia law, which is exactly what the attorney general is sworn to do, as if this nation’s most serious challenge to constitutionally guaranteed individual rights is a light matter. In this case, he is defending the General Assembly’s recently passed Health Care Freedom legislation. To put it another way, repeat the litany above, followed by:

But defending Virginia law: Priceless.

Now, if Delegate Englin wants to make the argument these tens of thousands of new government jobs are part of the “stimulus” plan, he might have us stumped. But if it will put him at ease, we have the Attorney General Communications Director Brian Gottstein’s assurance of one of the most economical law suit filings in Virginia history. When asked by the Washington Post why the suit was filed “before the ink (from the president’s signature) dries,” he replied:

It’s more cost efficient to start the process of challenging the bill as soon as possible. There are significant costs in implementing the health care law, so if it is going to be found unconstitutional, then we can save taxpayer money and trouble by making that determination sooner rather than later.

(By the way, experience for yourself the level of fanaticism, hate, extremism and adherence to the god that is government-is-best by today’s leftists. Click on the above link and read the comments.) But they don’t have to save it for our AG. In fact, more than a dozen (and counting) attorneys general are filing legal challenges (Christian Science Monitor), but none of them is defending a state law. No, Internet games are frivolous, and in this regard, Delegate Englin has topped even his legislative follies, with a Web site designed to hassle and harrass the Office of Attorney General. Talk about wasting tax dollars. We hope, but don’t expect, the delegate and his rabid supporters, will own up and admit they were wrong if, and when, Attorney General Cuccinelli and any of the other attorneys general win their cases.

Registration for Family Foundation Day of the Capitol, which takes place Monday, January 18, remains open online at our Lobby Day Web Page, here. Online registration will close at midnight Sunday.

Keynoting the event will be Lt. Governor Bill Bolling, who will give an overview of the new administration’s priorities. Several outstanding members of the General Assembly also will address attendees concerning priority legislation. Senator Steve Newman (R-23, Lynchburg) and Delegate Kathy Byron (R-22, Lynchburg) will discuss their legislation addressing the horrific incident in Campbell County where a newborn baby was allegedly killed by its mother just after birth, while no charges were filed because of confusion over Virginia law.

Also speaking is Delegate John O’Bannon (R-73, Richmond), who will discuss the health care issue and legislation he is co-patroning that is intended to protect Virginians from the national health care proposals now before Congress. Delegate O’Bannon is a neurologist and legislator, so he brings expertise from both fields to the debate.

Senator Mark Obenshain (R-26, Harrisonburg) speak about his legislation that will provide a measure of school choice to Virginia’s families. As the legislature faces a serious spending crisis, school choice is one of the only real reforms being offered that can save the  commonwealth money in the long run.

Family Foundation Day at the Capitol takes place at the Hilton Garden Inn, one block from Capitol Square. (Valet parking is available at the Hilton Garden Inn for just $6.) Registration begins at 9:00 a.m., with the program beginning at 10:00. In the afternoon participants will have the opportunity to have constituent meetings with their legislators.

Family Foundation Day at the Capitol is an opportunity to learn about many of the key issues debated in Richmond and influence our elected officials. We hope you will attend and pass along this link to others you think might be interested.