Virginia's Abortion Law: What's The Verdict?

Virginia is the only state in the South without a post-Roe v. Wade abortion ban or waiting period, making it a key access point for people in nearby states. While abortion is legal in Virginia, the right to one is not enshrined in the state constitution. Virginia Democrats have introduced a constitutional amendment to protect abortion access in the state, but it won't be on the ballot until 2026 at the earliest. In the meantime, Republicans have tried to pass bills to restrict, ban, or criminalize abortion, while Democrats have vowed to protect abortion rights. The debate over abortion in Virginia reflects the broader national divide on the issue, with single-issue pro-choice voters potentially having a significant impact on election outcomes.

Virginia Democrats' proposed constitutional amendment to protect abortion access

Virginia Democrats have proposed a constitutional amendment to protect abortion access in the state. The amendment, introduced shortly after the Democrats' wins in the November 7 elections, states that everyone has a "fundamental right to reproductive freedom" that cannot be infringed upon by the state.

The amendment is designed to protect abortion access in Virginia and preserve the state's existing abortion law, which is currently the only Southern state that hasn't imposed new abortion restrictions since the U.S. Supreme Court overturned Roe v. Wade in 2022. The proposed amendment would bar any laws limiting abortion, except for measures that seek to protect the person seeking care.

The Democrats' proposal has sparked debate, with reproductive rights advocates arguing that it is necessary to protect abortion access, while opponents claim that it could threaten laws like parental consent for minors seeking abortions. The amendment's wording, which does not explicitly mention "abortion," has also been criticized as "deceptive" by some conservative groups.

For the amendment to be enacted, it must pass the General Assembly twice: once before the 2025 elections and once after, without requiring the signature of Governor Glenn Youngkin or any future governor. Voters would then have the final say in a statewide referendum in November 2026.

The proposed amendment is part of a broader effort by Virginia Democrats to protect abortion rights in the state. They have also introduced bills to prevent the extradition of patients and healthcare providers involved in abortion procedures and to ban the issuance of search warrants for menstrual health data.

The Virginia House of Delegates' rejection of a near-total abortion ban

On February 8, 2024, the Virginia House of Delegates voted down a bill that would have instituted a near-total abortion ban. The vote was decisive, with a House subcommittee rejecting the measure on a bipartisan 8-0 vote. The bill, sponsored by freshman Republican Tim Griffin, would have prohibited abortions except in cases necessary to save the mother's life.

Griffin faced questions about the implications of his bill for miscarriage care and rape victims, to which he responded that the bill was about "protecting unborn children and women." On a party-line vote, Democrats on the same panel also voted down a separate bill that would have prohibited abortions sought on the basis of the sex or race of the fetus.

The votes in the Virginia House of Delegates marked a fulfillment of the Democratic campaign trail pledge to protect reproductive healthcare rights in Virginia, which has some of the South's most permissive abortion laws. Virginia is the only state in the region that has not imposed new abortion restrictions since Roe v. Wade fell.

The rejection of the near-total abortion ban in Virginia stands in contrast to the embrace of abortion restrictions by Republican-led states and underscores the potency of abortion as a mobilizing force for voters. It also highlights the divide between those who support abortion rights and those who advocate for restrictions, with Democrats in Virginia arguing that a ban is a ban, regardless of the number of weeks allowed.

The Virginia House of Delegates' vote against the near-total abortion ban sends a strong message about the importance of protecting reproductive healthcare rights and keeping political decision-making out of personal healthcare choices.

The Virginia Republican Party's support for a 15-week abortion ban

The Virginia Republicans' endorsement of abortion restrictions was intended to neutralize abortion rights warnings from Democrats and provide a "road map" for tackling abortion at both the state and federal levels. They framed Youngkin's proposal as a moderate approach that most Virginians could support. State party leaders urged all Republican candidates to back the measure or, at the very least, remain quiet on their support for stricter restrictions.

However, this strategy ultimately backfired, as Virginia voters handed control of the state legislature to the Democrats, who campaigned on protecting abortion rights. The Republican Party's losses suggest that even a 15-week ban may be unappealing to a broad coalition of voters who are wary of government restrictions on abortion.

The impact of this issue may be more noticeable in politically diverse states like Virginia, where voters are more likely to favor abortion protections in the first trimester. Virginia Democrats argued that Republican candidates would push for even more stringent restrictions if elected, and voters expressed skepticism about the Republicans' commitment to a 15-week ban.

The legality of abortion in Virginia

Abortion in Virginia was largely illegal before 1900, reflecting the trend in many US states during the 19th and early 20th centuries. It was considered a criminal act and prohibited by state laws. However, in 1950, Virginia introduced a legal therapeutic exception, allowing abortion under specific circumstances, primarily when a woman's physical or mental health was at risk. The University of Virginia Hospital established a review board in 1950 to evaluate and approve abortion requests, particularly those based on psychiatric reasons.

In 1970, Virginia underwent significant reforms to its abortion laws, aligning with the evolving legal standards set by the American Law Institute's Model Penal Code. This marked a shift in the state's approach to reproductive rights. A pivotal moment came in 1975 with the landmark case of Bigelow v. Virginia, where the US Supreme Court ruled that state bans on abortion clinics advertising their services were unconstitutional. This ensured that abortion providers in Virginia and across the country could openly communicate and provide information to the public.

In 2013, Virginia implemented stringent Targeted Regulation of Abortion Provider (TRAP) laws, imposing requirements on abortion clinics, private doctor offices, and medication-induced abortions. These regulations sparked debates about their impact on abortion access and healthcare. In 2019, Virginia passed legislation banning abortion after the 25th week of pregnancy, and in 2020, Governor Ralph Northam signed bills removing certain abortion-related regulations, including mandatory ultrasounds and social counselling.

In 2022, the US Supreme Court overturned Roe v. Wade, which had previously protected abortion rights during the first trimester. This decision allowed states to regulate abortion again, and in 2023, Virginia Republicans, led by Governor Glenn Youngkin, embraced a 15-week abortion ban with some exceptions. However, they lost control of the Senate to the Democrats, who campaigned on protecting abortion rights.

In February 2024, the Virginia House, controlled by Democrats, rejected a bill that would have instituted a near-total abortion ban. As of October 2024, abortion is legal in Virginia up to the end of the second trimester (26 weeks and 6 days). There are some exceptions that allow abortions after this period to save the pregnant person's life or preserve their general health.

The debate over abortion in Virginia continues, with Democrats introducing a constitutional amendment to protect abortion access, which is not expected to reach the ballots until 2026. This amendment states that everyone has a "fundamental right to reproductive freedom" that cannot be infringed upon by the state. While reproductive rights advocates celebrate this move, abortion critics argue that the amendment's language could threaten existing laws, such as parental consent for minors seeking abortions.

The impact of abortion on Virginia election results

Abortion has been a key issue in Virginia elections, with the topic often polarising voters and influencing their choices at the polls. In recent years, the debate around abortion in Virginia has centred on the proposed restrictions on abortion access, with both Democratic and Republican candidates taking strong stances on the issue.

The Democratic Perspective

Virginia Democrats have traditionally campaigned on a platform of protecting abortion rights and access. Following their wins in the November 2023 elections, they introduced a constitutional amendment to safeguard reproductive freedom in the state. This amendment, which doesn't require the approval of the Republican governor, is expected to be on the ballots in 2026, coinciding with the next statewide election. The delay in bringing the amendment to a vote is due to the multiyear process of amending the state constitution, which requires two passages by the General Assembly before going to a statewide vote.

Democrats have also taken concrete legislative action to protect abortion access. They repealed previous abortion restrictions, such as the mandatory ultrasound law and the 24-hour waiting period, and allowed nurse practitioners to provide abortions within the first trimester. Additionally, they have proposed bills to prevent the issuance of search warrants for electronic or digital menstrual health data, ensuring privacy and protection for women.

The Republican Perspective

On the other hand, Virginia Republicans have advocated for abortion restrictions and have tried to enact abortion bans over the years. In the 2023 elections, they embraced a 15-week abortion ban, backed by Governor Glenn Youngkin, as a "common-sense" consensus limit. They argued that this strategy would neutralise abortion rights warnings from Democrats and help them gain support from voters. However, this approach ultimately backfired, as Republicans suffered heavy losses in the elections, suggesting that even a 15-week ban may be unappealing to a broad coalition of voters.

Despite these setbacks, Republicans continue to push for abortion restrictions. They have introduced bills to ban most abortions after 15 weeks and prohibit abortions except in cases of incest, rape, or to protect the life of the mother. Additionally, they have opposed Democratic efforts to enshrine abortion rights in the state constitution, characterising Democratic proposals as "extreme".

Voter Sentiment

Voters in Virginia have shown their support for abortion access and their rejection of new restrictions. In the 2023 elections, Virginia voters handed control of the legislature to the Democrats, blocking Republican efforts to impose abortion restrictions. This outcome suggests that abortion remains a potent mobilising force for voters, and they are willing to reject lawmakers who endorse restrictive policies.

Voters have expressed scepticism towards lawmakers who oppose abortion, questioning their commitment to a 15-week ban and believing that they would eventually push for more stringent restrictions. Additionally, voters have highlighted the importance of abortion access, with some individuals driven to vote specifically due to concerns about abortion rights.

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