by James C. Sherlock
To clarify for those who misunderstand or knowingly misrepresent the statements of Republican leaders in the General Assembly concerning a new law on abortion, a woman aborting her unborn child is not proposed to be the subject of legal sanctions.
The targets in the mainstream Republican proposals being developed for a new abortion law will be the licenses of those performing the procedure.
Under current Virginia state law, abortion is legal in the first and second trimesters, or up to 26 weeks of pregnancy. It is allowed in the third trimester only if the woman’s life or mental or physical health is in danger.
Governor Youngkin told The Washington Post he would like the cutoff to be 15 or 20 weeks. He told the Post that he would support exceptions for rape, incest and when the mother’s life is in danger.
He has asked state senators Siobhan Dunnavant, R-Henrico, and Steve Newman, R-Forest, and delegates Kathy Byron, R-Lynchburg, and Margaret Ransone, R-Kinsale, to craft the legislation.
Dr. Siobhan Dunnavant, MD is an Obstetrics & Gynecology Specialist in Richmond. Senator Newman, R-Lynchburg, said in an interview with WTOP radio:
The state licensing process is most likely the best way to go about enforcement.
Indeed, it is the only politically viable way.
The state medical licensing process. In broad terms, a state has the power to revoke the license of a medical practitioner based on the general police power to proscribe practices that adversely affect the public health, safety, and morals.
It is the responsibility of the General Assembly to make sure any law empowering the state licensing board to revoke licenses is not vague and ambiguous.
Licensed medical professionals who violate such a law are at risk of losing their licenses to practice in Virginia. Administrative suspensions and full withdrawal of such licenses occur regularly in the Commonwealth.
Those actions are taken by the state’s health regulatory boards, not the courts.
The law that empowers the boards is § 54.1-2400. General powers and duties of health regulatory boards.
The general powers and duties of health regulatory boards shall be:
7. To revoke, suspend, restrict, or refuse to issue or renew a registration, certificate, license, permit, or multistate licensure privilege which such board has authority to issue for causes enumerated in applicable law and regulations.
That process is subject to court review.
11. To convene, at their discretion, a panel consisting of at least five board members or, if a quorum of the board is less than five members, consisting of a quorum of the members to conduct formal proceedings pursuant to § 2.2-4020, decide the case, and issue a final agency case decision. Any decision rendered by majority vote of such panel shall have the same effect as if made by the full board and shall be subject to court review in accordance with the Administrative Process Act.
Any appeal is heard in circuit court,
Pursuant to Virginia Code §§ 2.2-4026 and 2.2-4027, a circuit court will review a case decision on appeal by a party to the case….
Court review of an agency’s factual findings is governed by the “substantial evidence” standard….
Pursuant to Virginia Code § 2.2-4029, unless an error of law as defined in Virginia Code § 2.2-4027 appears, the court shall dismiss the review action or affirm the board’s case decision. Where a case decision is found by the court to be not in accordance with law under Virginia Code § 2.2-4027, the court shall suspend or set it aside and remand the matter to the board for further proceedings, if any, as the court may permit or direct in accordance with law.
The terms of the coming debate. So, it is important to realize the terms of the coming debate on Virginia laws on abortion. The woman carrying the child is not and will not be in violation of any new law according to Newman. There is an excellent reason for that.
Any proposed law criminalizing the expectant mother would lose Republican votes. The majority of Republicans are not politically suicidal.
But, of course, Virginians are already hearing otherwise.
The false bravado of the woke CAs. Steve Descano, Commonwealth’s Attorney for Fairfax County, in an op-ed in The New York Times:
So when the court’s draft decision overturning Roe v. Wade was leaked earlier this month, I committed to never prosecute a woman for making her own health care decisions. That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion or for being suspected of inducing one.
By making clear to law enforcement that we won’t prosecute women for making health care decisions, we can disincentivize these intrusions into the personal lives of the people we serve.
Norfolk Commonwealth’s Attorney Ramin Fatehi reiterated a pledge to “never prosecute a person for seeking or getting an abortion.”
Good to know, folks. Just not relevant. And you know it.
Constitutional challenge. The constitutionality of any law is subject to challenge in Virginia courts or federal courts or both. Be a plaintiff, find an attorney for a well-funded non-profit to represent you and go for it. Or more likely vice versa. Such non-profits are as abundant as leaves on the trees. Claim lack of due process.
It won’t cost the plaintiff a dime.
Bottom line. All opinions on the law that is actually being developed are welcome, as long as they do not mischaracterize the law.
But claims that expectant mothers who have an abortion will be arrested by unfeeling police but saved by woke CAs will continue unabated.
It’s what they do.