by Hans Bader
Virginia may permanently legalize abortion in all nine months of pregnancy by banning any regulation of abortion unless necessary to meet a compelling interest, and — more importantly — defining “compelling interest” to exclude the life of the fetus even after viability.
Its text defines compelling interest to include only the health of the mother, not the life of a viable fetus, by stating that a “state interest is compelling only when it is to ensure the protection of the health of an individual seeking care.” Fetuses are not “seeking care,” only their mother is.
By contrast, even when the U.S. Supreme Court upheld abortion rights, it recognized that the state had a compelling interest in protecting a viable fetus, from being aborted in the third trimester of pregnancy. As a result, current Virginia law only allows an abortion in the third trimester to protect the health or life of the mother, when “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.”
The Supreme Court’s decision in Roe v. Wade said that abortion rights were generally protected, but for “the stage” of pregnancy “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The State has an “important and legitimate interest in protecting the potentiality of human life,” which becomes “‘compelling’ …at viability.” But a woman could nevertheless obtain an abortion even after viability, if it was necessary to protect her health.
Health is expansively defined in the Supreme Court’s Doe v. Bolton decision to include consideration of not just “physical” but also “emotional, psychological,” and other factors.
However, in its 2022 decision in Dobbs v. Jackson Women’s Health Organization, a majority of the Supreme Court ruled there was no right to abortion under the federal Constitution, a conclusion I criticized at the time for not adhering to principles of stare decisis. I argued that the Court should have allowed certain additional limits on abortion, but not in the first trimester. I also noted the decision was unpopular with voters and would result in Democratic election victories.
Prior to the Dobbs decision, this state constitutional amendment would never have passed, because it would have been viewed as extreme to legalize all third-trimester abortions, even when the mother’s health is not at risk.
But now, it might pass, because after the Dobbs decision, voters strongly oppose limits on most abortions (at least early-term abortions). Voters are now so suspicious of any abortion limits that even Montana’s referendum to protect “born alive” infants from being aborted failed, even though Montana is more conservative than Virginia.
There’s a big difference between a third-trimester fetus that has a functioning brain and can feel agonizing pain from being aborted, and a one-month old embryo than can’t think or feel anything. I was born six weeks early, before some fetuses are aborted, and could already feel pain and have feelings. But Democrats in the legislature don’t seem to see the difference. Some anti-abortion activists don’t seem to see a difference, either: They want to ban all abortions, even the earliest abortions, which scares most suburban women who are swing voters, and makes them more likely to vote for this state constitutional amendment allowing abortion without limit in all nine months of pregnancy.
I would expect this proposed state constitutional amendment to be passed twice by the Democratic-controlled state legislature (as is required to put it on the ballot), and for it to then go on the ballot. In Virginia, the legislature has to pass a constitutional amendment twice, “in two different legislative sessions separated by an election,” to put it on the ballot. The Virginia governor plays no role in the process, and cannot veto it, so it can be passed by the legislature, and put on the ballot, on a party-line vote, without any Republican support.
My guess is that voters will only reject this state constitutional amendment if they think it is unneeded to keep a future legislature from banning abortion in the early stages of pregnancy. Voters don’t like third-term abortions, but they dislike bans on first-term abortions even more than they dislike late-term abortions. One way to make this amendment less likely to be approved by voters would be for Republicans to make clear that they won’t push for limits on abortion prior to 15 weeks. Virginia Governor Youngkin has only proposed a 15-week limit on abortions, but Republican leaders haven’t promised not to limit first-term abortions.
Democrats in the Virginia legislature uniformly oppose any new restrictions on abortion (the one Democratic legislator open to restricting abortion — Senator Joe Morrissey — was defeated in the 2023 Democratic Primary). Republicans tend to support limits on abortion.
But because Virginia is a bluish-purple state, Republicans are unlikely to ever have a big enough majority in the Virginia legislature to enact a ban on first-term abortions. So the proposed constitutional amendment probably is not needed to keep Virginia from banning abortion in the early stages of pregnancy (abortions that are legal under current law).
A few Republicans in swing districts are likely to vote against restrictions on abortion, as Republican State Senator Siobhan Dunnavant did in 2023, and as a few GOP candidates indicated they would in 2023. (Dunnavant “voted against a bill supported by Youngkin that sought to ban abortions after 15 weeks, because it didn’t have an exception for fetal anomalies”).
But others support abortion restrictions. And even a small risk of abortion bans becoming law is too much of a risk for some swing voters.
(Below is the text of the constitutional amendment, House Joint Resolution No. 1:)
Amend the Constitution of Virginia by adding in Article I a section numbered 11-A as follows:
That every individual has the fundamental right to reproductive freedom. This right to make and effectuate one’s own decisions about all matters related to one’s pregnancy shall not be denied, burdened, or infringed upon, unless justified by a compelling state interest and achieved by the least restrictive means that do not infringe an individual’s autonomous decision-making. A state interest is compelling only when it is to ensure the protection of the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine. The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.
That, except when justified by a compelling state interest, the Commonwealth shall not penalize, prosecute, or otherwise take adverse action against an individual on the basis of an actual, potential, perceived, or alleged outcome of such individual’s pregnancy, nor shall the Commonwealth penalize, prosecute, or otherwise take adverse action against an individual who aids or assists another individual, with such individual’s voluntary consent, in the exercise of such individual’s right to reproductive freedom.
That this section shall be self-executing and that if any provision of this section is held invalid, it shall be severable from the remaining portions of the section.
This column is republished with permission from Liberty Unyielding.
Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at email@example.com