Virginia Abortion Law: Legal Battle And Contested Rights

Virginia's abortion laws have been the subject of much debate and contention in recent years, with the state's legislative history reflecting a continual evolution of regulations that have shaped access to reproductive healthcare. In 2024, the Virginia House rejected a bill that would have instituted a near-total abortion ban, with Democrats defeating several bills that would have restricted abortion access. This came after Governor Ralph Northam signed bills in 2020 removing certain abortion-related regulations and expanding access. However, in 2019, Virginia passed legislation banning abortion after the 25th week of pregnancy. The state's abortion laws have been a contentious issue, with protests and rallies held by both abortion rights supporters and anti-abortion activists.

Virginia's Reproductive Health Protection Act

On April 10, 2020, Virginia Governor Ralph Northam signed the Reproductive Health Protection Act, repealing several abortion restrictions in the state. The Act was sponsored by Senator Jennifer McClellan and House Majority Leader Charniele Herring.

The Reproductive Health Protection Act repealed Virginia's mandatory ultrasound law and 24-hour waiting period prior to abortion. It also rolled back restrictions on women's health centres, which Democrats argued were designed to force the closure of centres providing abortions. The Act also removed a biased counselling requirement.

Governor Northam stated that the Act would make women and families safer, and that "legislators in Richmond [...] will no longer be telling women what they should and should not be doing with their bodies". Senator McClellan echoed this sentiment, stating that the Act was about "protecting Virginians' health, rights, and basic dignity". She further commented that politicians should not interfere in women's personal medical decisions.

Prior to the Act, Virginia law included several medically unnecessary restrictions on abortion access. Abortion was legal in Virginia through the second trimester, and only legal in the third trimester if necessary to save the life of the mother or to preserve her physical or mental health. Women seeking abortions in Virginia were also required to undergo a transvaginal ultrasound of their fetus prior to the procedure.

Virginia's abortion laws and the Supreme Court

Virginia's abortion laws have been a contentious issue, with a dynamic legislative history and ongoing debates surrounding reproductive healthcare in the state. The state's current laws allow abortion during the first and second trimesters. During the third trimester, abortion is only permitted if multiple physicians certify that continuing the pregnancy is likely to "substantially and irremediably" impair the mental or physical health of the woman or result in her death.

The U.S. Supreme Court's Roe v. Wade ruling in 1973 had a significant impact on Virginia's abortion laws. The ruling meant that Virginia could no longer impose undue restrictions on abortion during the first trimester, safeguarding a woman's right to choose during this period. However, in 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, returning the power to regulate abortion to the states.

In response to the Supreme Court's decision, Virginia's legislative landscape has been divided. In 2023, Virginia Senate Democrats defeated several bills that would have restricted abortion access, including a proposed 15-week ban supported by Republican Governor Glenn Youngkin. On the other hand, several similar measures are still alive in the Republican-controlled House of Delegates.

The future of Virginia's abortion laws remains uncertain, with the upcoming 2024 elections expected to play a pivotal role in shaping the state's abortion legislation. While Democrats have vowed to protect abortion rights, Republicans argue for stricter regulations. The state's divided government makes significant progress on abortion legislation challenging in the near term.

Virginia's judicial history regarding abortion is also noteworthy. In 1975, the U.S. Supreme Court ruled in Bigelow v. Virginia that state bans on abortion clinics advertising their services were unconstitutional, ensuring that abortion providers could openly communicate about their services. Additionally, the 1975 case of Planned Parenthood of Central Missouri v. Danforth reaffirmed the principles established in Roe v. Wade, requiring Virginia to amend its abortion laws to conform to the constitutional mandate.

Democrats defeat bills limiting abortion access

On January 26, 2023, Virginia Senate Democrats defeated several bills that aimed to restrict abortion access in the state. This was the first decisive legislative vote in Virginia since the Supreme Court's decision to overturn Roe v. Wade in 2022. The votes indicated that, barring an unexpected procedural move, abortion restrictions are unlikely to be enacted in Virginia this year.

The three measures, which were voted down on a party-line basis, included a proposed 15-week ban with exceptions for rape, incest, and the life or physical well-being of the woman. This bill was a priority for Republican Gov. Glenn Youngkin and was sponsored by Republican Sen. Steve Newman. Newman described the proposal as a carefully crafted compromise, offering "commonsense protection for the unborn" and asserting that it would not criminalize women or affect medical care in cases of miscarriage, stillbirth, and ectopic pregnancies. However, Democrats saw it as an extreme bill that went against the will of Virginians, who desired a reasonable compromise.

The second measure, proposed by Republican Sen. Siobhan Dunnavant, an OB-GYN, aimed to add new limits on third-trimester abortions. It would have allowed abortions through the second trimester before viability, defined as either 24 or 22 weeks, if three physicians agreed. Dunnavant argued that medical advances had moved the date of viability earlier in a pregnancy. This bill was also defeated with a vote of 9-6, with Dunnavant absent for the in-person vote.

The third bill, from Republican Sen. Travis Hackworth, sought to ban nearly all abortions, with exceptions for rape, incest, and the life of the woman. It would have made performing an "unlawful abortion" a class four felony.

The outcome of these votes was expected, as Senate Democrats had vowed to defeat any efforts to restrict abortion access following the Roe v. Wade decision. The recent election of Democratic Sen. Aaron Rouse has further strengthened their position, adding one more vote to their narrow control of the chamber.

Public funding for abortions

Virginia's abortion laws have been contested in recent years, with the state's Senate Democrats defeating several bills that would have restricted abortion access. This includes a proposed 15-week ban with exceptions, which was a priority for Republican Governor Glenn Youngkin. The current law in Virginia allows abortion during the first and second trimesters, with third-trimester abortions permitted only if multiple physicians certify that continuing the pregnancy is likely to "substantially and irremediably" impair the mental or physical health of the woman or result in her death.

• Pregnancy resulting from rape or incest: The VDH and DMAS may use state funds for patients with Medicaid who have experienced rape or incest and have followed the reporting requirements outlined by law.
• Fetus with incapacitating physical deformity or mental deficiency: The VDH and DMAS can provide funding for patients with Medicaid when there is a documented incapacitating abnormality with the fetus.
• Threat to the life or health of the mother: The DMAS (Medicaid) may use public funds in cases where the pregnancy endangers the life or health of the mother or birthing person.

To be eligible for public funding for abortion services in Virginia, individuals must meet specific requirements. They must be a Virginia resident, satisfy the financial eligibility criteria of the Virginia Department of Medical Assistance Services Plan (Medicaid), and meet one of the two criteria outlined in the Code of Virginia related to rape/incest or fetal abnormalities. Additionally, there are specific documentation and reporting requirements that must be fulfilled to access public funding for abortion services in the state.

Ultrasound requirements

Virginia law requires women seeking abortions to undergo a transvaginal ultrasound of their fetus prior to the procedure. This ultrasound must be obtained at least 24 hours in advance of the abortion if the patient lives within 100 miles of the provider. The ultrasound is intended to dissuade individuals from obtaining an abortion by personifying the fetus. It can also add significantly to the cost of the procedure.

Virginia is one of six states that mandate that an abortion provider perform an ultrasound on each person seeking an abortion. Eight of these states require the provider to offer the patient the opportunity to view the image. In Virginia, the patient may decline to view the image under certain circumstances, such as if they have been sexually assaulted.

The ultrasound requirement is part of the Two-Trip Mandatory Delay Law, which forces women to undergo an unnecessary ultrasound and listen to state-mandated information designed to shame the patient at least 24 hours before their procedure. This means patients must unnecessarily make at least two trips to a medical facility and delay their procedure by at least 24 hours.

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