From the ERA to abortion: five cases in which Va.’s new AG changed the state’s legal position

By: - March 2, 2022 12:03 am

Attorney General Jason Miyares flashes a thumbs up in the Senate gallery. (Ned Oliver/Virginia Mercury)

Attorney General Jason Miyares is the first Republican to hold the office in nearly a decade. So his office says it’s natural to expect the state’s legal position to change after eight years under the control of Democrat Mark Herring.

Asked for a complete accounting of cases in which Miyares directed the state to change sides or withdraw, Miyares’s spokeswoman, Victoria LaCivita, listed five:

Virginia v. Ferriero: A case filed against National Archivist David Ferriero to compel him to recognize the ratification of the Equal Rights Amendment and include it in the U.S. Constitution. Miyares filed to withdraw from the lawsuit, which would leave Nevada and Illinois as plaintiffs.

West Virginia v. EPA: Herring had added his name to a brief last year opposing the case aimed at blocking environmental regulations. Miyares says the state will “no longer be a participating party” because “Virginia is no longer anti-coal.”

Dobbs v. Jackson Women’s Health Organization: In this case, Herring had joined 22 attorneys general to argue Mississippi’s 15-week abortion ban was unconstitutional.  In a statement, Miyares said, “Virginia is now of the belief that the Constitution is silent on the question of abortion.”

Carson v. Makin: Miyares also withdrew from a brief Herring had signed onto opposing a lawsuit in which families in Maine are seeking to force a local school district to provide tuition assistance for religious schools. “The Commonwealth believes that the First Amendment prohibits states from withholding tuition assistance from families solely on the ground that those families choose to send their children to religious schools,” LaCivita said.

New York State Rifle & Pistol Association v. Bruen: In this pending case, a New York couple is suing to overturn a state law that limits concealed carry handgun permits to people who can show a special need for protection. Miyares said he withdrew from a brief Herring had signed supporting limits to concealed carry permits because he believes the law “is in direct conflict with the Second Amendment.”

“It is expected for a new attorney general to assess the state’s legal positions and make their own decisions regarding the future of the legal challenges,” LaCivita said of the changes in an email. “These decisions must be made at the very beginning of the administration, out of respect to the court.”

Legal experts say the actions are entirely symbolic and will have no effect on the outcome of any of the lawsuits.

“I don’t think any judges are sitting there counting the number of attorneys general on one side or the other,” said Saikrishna Prakash, a professor at University of Virginia School of Law. “They’re looking at arguments and trying to come to a conclusion. The fact that Jason Miyares has changed the views of the attorney general’s office is not going to matter at all.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.