Explainer: Virginia Legislature set to rescind pro-life legislation

January 31, 2020

What just happened?

The Virginia state House and Senate voted this week to roll back pro-life legislation and remove several modest restrictions on abortion. The state House passed it’s version of the pro-abortion bill on Tuesday, while the Senate narrowly passed it’s version on Wednesday (the bill was deadlocked at 20-20, but Democratic Lt. Gov. Justin Fairfax cast a tie-breaking vote in favor of  the legislation).

The bills were passed largely along partisan lines, with Democrats voting to rescind the restrictions and Republicans opposing the liberalization of abortion. House Republican Caucus Chair Kathy Byron said the measure "establishes standards so lax, so casual, that anyone, at any time, almost anywhere, can have an abortion performed by just about anybody."

The individual bills will be exchanged for consideration and reconciliation before being sent to Gov. Ralph Northam, a pro-abortion advocate, to be signed into law.

What changes will the legislation make to Virginia’s abortion laws?

The legislation will remove Virginia’s requirement that abortions must be performed by doctors and will allow the procedure to be performed by a “licensed health care provider.” The House version would allow abortions to be performed by physician assistants, nurse practitioners, and certified nurse midwives, while the Senate bill would allow only nurse practitioners. (Last September, a federal judge upheld the "physician-only" law against a challenge by abortion supporters.)

The bill also repeals current requirements that a woman seeking an abortion receive certain information 24 hours before an abortion, such as that she may withdraw her consent prior to the procedure, that she be allowed to speak with the physician who is to perform the abortion, and be given a statement on the probable gestational age of the fetus at the time the abortion.

Facilities in which five or more first trimester abortions per month are performed will no longer be classified as a category of "hospital"—and subject to the strict regulation that entails. The Senate version of the bill also repeals the requirement to perform an ultrasound, as well as the opportunity to see the ultrasound.

What is the significance of this legislation for other states?

Even though the legislation affects only the state of Virginia, it provides a glimpse into the pro-abortion strategy that may soon affect other states. While the loosening of abortion restrictions occurs at the level of individual states, they are often designed and promoted by national pro-abortion groups.

For example, for nearly 50 years, a primary argument of abortion activists was that the decision to abort a child should be left to the pregnant woman and her physician.

In 1973, the Supreme Court ruled in Doe v. Bolton that that a licensed physician had the authority and competence to determine if an abortion was medically necessary to protect the mother’s health and that no other physician or hospital abortion committee needed to be consulted. As the majority opinion stated, “Required acquiescence by co-practitioners has no rational connection with a patient’s needs, and unduly infringes on the physician’s right to practice.” The Court defined “health” in broad terms that include “physical, emotional, psychological, familial, and the woman’s age” and put the determination of what constitutes health solely at the discretion of the physician.

But the Virginia law is lowering this standard even further by saying that determination of “health” should be defined by someone who lacks even the basic medical training provided to doctors. This shows there is a shift toward removing the “health” standard altogether, and replacing it with abortion on demand for any reason.

The Virginia bills also show that state-level pro-life victories are always tentative. Many of the abortion restrictions were put in place in the early years of the 2010s, when the state legislature was controlled by pro-life members. But the restrictions are being tossed aside within months of the Virginia House and Senate being taken over by pro-abortion members. This a sobering reality for pro-life advocates in our critical work to enshrine protections for the unborn into law. This week’s change in Virginia should serve as a reminder that we need renewed vigilance to win the cultural case for human dignity in a way that brings more people into the fold such that abortion becomes unthinkable.