Virginia's Abortion Laws: Post-Birth Abortion And Its Legality

In 2019, Virginia's Democratic Governor Ralph Northam made comments about a bill that would have eased restrictions on third-trimester abortions in the state. His comments were misrepresented and shared on social media, with critics claiming he supported infanticide or after-birth abortions. However, Northam was referring to rare cases where a fetus has severe deformities or is non-viable, and his comments were addressing what happens in such cases when a baby is born with these issues and has a low chance of survival. Under Virginia law, third-trimester abortions are only permitted if the risk to the mother's life is substantial and irremediable, and the procedure must be performed in a licensed hospital with the approval of three physicians. While the bill in question failed to pass, the debate around it highlights the ongoing controversy surrounding abortion legislation in the United States.

Third-trimester abortions in Virginia are only permitted if the mother's life is at risk

The law in Virginia states that:

> "it shall be lawful for any physician licensed by the Board of Medicine to practice medicine and surgery to terminate or attempt to terminate a human pregnancy or aid or assist in the termination of a human pregnancy by performing an abortion or causing a miscarriage on any woman in a stage of pregnancy subsequent to the second trimester provided the following conditions are met:

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> a) Said operation is performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services.

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> b) The physician and two consulting physicians certify and so enter in the hospital record of the woman, that in their medical opinion, based upon their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman.

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> c) Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability."

This means that, in Virginia, late-term abortions are only permitted in specific circumstances and with strict conditions in place. The mother's life must be at substantial and irremediable risk, and the procedure must be carried out in a licensed hospital with the approval of multiple physicians.

It is important to note that abortions later in pregnancy are extremely rare and usually only occur due to serious complications that put the life of the woman or fetus at risk. In most cases, these are wanted pregnancies, and the decision to terminate is made in consultation with medical professionals.

Virginia law requires three physicians to certify a third-trimester abortion

In Virginia, abortions in the third trimester are lawful in specific circumstances. The Code of Virginia states that a pregnancy may be terminated after the second trimester if the following conditions are met:

• The operation is performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services.
• The physician and two consulting physicians certify and enter in the hospital record of the woman that, based on their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair her mental or physical health.
• Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability.

The above conditions also apply to abortions during the second trimester of pregnancy and prior to the third trimester.

In 2019, a bill (HB 2491) was introduced in the Virginia House of Delegates to loosen restrictions on abortions during the third trimester. The bill would have eliminated the requirement that an abortion before the third trimester be performed in a hospital and that two other physicians certify that a third-trimester abortion is necessary. The bill was tabled in a 5-3 vote and may not be considered again this legislative season.

It is important to note that abortions later in pregnancy are extremely rare and usually result from serious complications that put the life of the woman or fetus at risk. Experts say that it is not physically possible to perform an abortion if a woman has already gone into labor naturally.

The procedure must be performed in a licensed hospital

In Virginia, abortions are highly regulated by law. The state's legislation outlines specific conditions under which abortions are permitted, with varying requirements depending on the stage of pregnancy.

For abortions after the second trimester of pregnancy, Virginia law stipulates that the procedure must be performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services. This requirement ensures that abortions at this stage are carried out in controlled and medically equipped environments.

Licensed hospitals are designated to handle such procedures due to their specialised resources and staff expertise. They have the necessary equipment and facilities to address the complex medical needs that may arise during and after the abortion. These hospitals are subject to regulatory oversight, ensuring compliance with health and safety standards.

Additionally, the involvement of a licensed hospital helps ensure that the patient has access to a comprehensive range of medical services. This includes emergency care, should any unforeseen complications arise during the procedure. The hospital setting also provides a level of assurance regarding the patient's privacy and confidentiality, which are critical considerations in such sensitive situations.

The requirement for a licensed hospital also extends to abortions during the second trimester. This condition underscores the importance of medical professionalism and oversight in these procedures, regardless of the stage of pregnancy.

In summary, by mandating that abortions after the second trimester be performed in licensed hospitals, Virginia law prioritises the safety and well-being of the patient while also ensuring that these procedures are carried out within a strictly regulated medical framework.

Life support measures must be available for the infant

In Virginia, life support measures must be available for an infant that is born alive following an abortion or miscarriage. This is outlined in Virginia's law code under Article 9. Abortion, § 18.2-74. When abortion or termination of pregnancy is lawful after the second trimester of pregnancy.

The law states that "measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability". This means that if an abortion or miscarriage results in a live birth, healthcare providers are legally required to provide life support measures to the infant if there are signs that it could survive.

The law further defines "human infant who has been born alive" as a product of human conception that has been completely or substantially expelled or extracted from its mother, regardless of the duration of pregnancy. Evidence of life includes breathing, beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles.

It is important to note that this law applies specifically to abortions or miscarriages that occur after the second trimester of pregnancy. In Virginia, abortions after the second trimester are only permitted under specific circumstances, such as when the continuation of the pregnancy is likely to result in the death of the woman or substantially impair her mental or physical health.

Healthcare providers are legally obligated to follow this law and provide life support measures for infants born alive following an abortion or miscarriage after the second trimester of pregnancy. This ensures that the infant's chances of survival are maximized, even in cases where there may be severe deformities or non-viability.

The bill to remove restrictions on late-term abortions was criticised as infanticide

In 2019, a bill was proposed in Virginia that would have loosened the state's restrictions on abortions later in pregnancy, including the third trimester. The bill was sponsored by Virginia House Delegate Kathy Tran, a Democrat, and defended by then-Governor Ralph Northam, also a Democrat. The bill failed to be voted out of subcommittee.

Under the existing law in Virginia, third-trimester abortions are only permitted if the risk to the mother's life is "substantial and irremediable". The bill proposed by Tran sought to allow for late-term abortions if the mother's physical or mental safety were at risk. It would also have required the sign-off of only one doctor, instead of the three required under existing law.

Northam defended the bill in an interview with radio station WTOP, stating that it would allow termination in cases where there may be severe deformities or when there is a foetus that's not viable outside the womb. He gave the following hypothetical example:

> If a mother is in labor, I can tell you exactly what would happen. The infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.

Northam's comments were criticised by Republicans, including former US President Donald Trump, who claimed that Northam supported "killing babies after birth". In a tweet, Trump said:

> The Democrat position on abortion is now so extreme that they don’t mind executing babies AFTER birth.

Northam's spokesperson, Ofirah Yheskel, said that he was only discussing cases of "tragic or difficult circumstances" and that his comments were limited to describing "the actions physicians would take in the event that a woman in those circumstances went into labour".

The bill was criticised as infanticide by Republicans and conservative groups. The Republican caucus in the Virginia House of Delegates tweeted:

> Democrats proposed legislation to allow abortions up to just seconds before that precious child takes their first breath. Thankfully, our strong conservative majority was able to defeat this bill.

However, it is important to note that infanticide is criminalized in every state, and no state has passed a law that allows killing a baby during or immediately after birth. In addition, abortions later in pregnancy are extremely rare and usually only occur due to serious complications or risks to the woman's health.

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