ANTI-CHOICE LAWS
Abortion Ban
BAN ON ABORTION PROCEDURE
Virginia's ban outlaws a safe abortion procedure. Va. Code Ann. § 18.2-71.1 (Enacted 2003).
Virginia enacted a law which bans a safe, medically appropriate abortion procedure. When the law was enacted, a federal court enjoined its enforcement. In the wake of the Supreme Court's decision in Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Supreme Court remanded the case back to the 4th Circuit court for further proceedings. Richmond Med. Ctr. for Women v. Hicks, 301 F. Supp. 2d 499 (E.D. Va. 2004), aff'd, 409 F.3d 619 (4th Cir. 2005), vacated and remanded sub nom Herring v. Richmond Med. Ctr. for Women, 127 S. Ct. 2094 (2007). Upon remand, a three-judge panel of the 4th Circuit court found the law unconstitutional because it imposes an undue burden on a woman's right to obtain an abortion. This decision distinguished the Virginia law from the federal ban upheld in Gonzales v. Carhart. Richmond Med. Ctr. v. Herring, No. 03-1821, slip op. (4th Cir. May 20, 2008). However, in an en banc hearing of the full 11-member 4th Circuit court, the court reversed the panel's earlier decision, upholding the ban in a 6-5 opinion on the basis that the Virginia law did not constitute an undue burden on a woman's right to choose. Richmond Med. Ctr. v. Herring, Nos. 03-1821, 04-1255, 2009 WL 1783515 (4th Cir. June 24, 2009).
Virginia's law makes the performance of any abortion procedure that falls within a broad definition (except suction curettage, suction aspiration, and certain dilation and evacuation procedures) a felony, unless the procedure is necessary to prevent the death of the pregnant woman and the physician takes every medically reasonable step to preserve the life and health of the fetus. A procedure shall not be deemed necessary to prevent the death of the woman if completing the delivery of the "living infant" would also prevent the death of the woman. The pregnant woman is exempt from prosecution under this statute. Va. Code Ann. §18.2-71.1 (Enacted 2003). In addition, a court held that Virginia's previous ban, enacted in 1998, was unconstitutional because it lacked an exception to protect women's health and issued a permanent injunction prohibiting its enforcement. Richmond Med. Ctr. for Women v. Gilmore, 224 F.3d 337 (4th Cir. 2000). The law was subsequently repealed. See Va. Code Ann. §18.2-74.2 (Repealed 2003).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not obtain an abortion until at least 24 hours after the attending or referring physician or a licensed professional or practical nurse working under the physician's direct supervision tells her, in person or by telephone, information that includes: (1) a full, reasonable, and comprehensible medical explanation of the nature, benefits, risks of, and alternatives to the procedure; (2) probable gestational age of the fetus; (3) her right to speak to the attending physician; (4) an offer to review state-prepared materials, advising her that: (a) the state-prepared materials describe the "unborn child" and list agencies offering alternatives to abortion; (b) medical assistance benefits may be available for prenatal care, childbirth, and neonatal care and that more detailed information is available in the state-prepared materials; (c) the "father" of the "unborn child" is liable for child support even if he has offered to pay for the abortion, that assistance in the collection of such support is available, and that more detailed information is available in the state-prepared materials; and (d) she has a right to review the state-prepared materials.
The information about the state-prepared materials may be given by a licensed health-care professional working under the physician's direct supervision. If the woman chooses to view the materials, the materials must be provided to her at least 24 hours before the abortion or mailed to her at least 72 hours before the abortion.
The state-prepared materials must: (1) include a comprehensive list, including names and telephones numbers, of geographically indexed public and private agencies and services available to assist the woman through pregnancy, upon childbirth, and while the child is dependent including, but not limited to, adoption, paternity establishment and child support enforcement, child development, child rearing and stress management, and pediatric and maternal health care, or must provide a toll-free 24-hour telephone number to obtain the list orally; (2) describe with realistic and appropriate pictures or drawings the probable anatomical and physiological characteristics of the fetus at two-week increments, including survival rates; and (3) describe the common methods of abortion and the medical risks associated with each, the "possible detrimental psychological effects" of abortion, and the medical risks associated with carrying a pregnancy to term.
Va. Code Ann. § 18.2-76 (Enacted 1997; Last Amended 2003).
In 2003, the Virginia legislature passed a law amending the current biased-counseling law to require that state-prepared materials must include information on adoption. Va. Code Ann. § 18.2-76 (Enacted 1997; Last Amended 2003).
Counseling Ban/Gag Rule
No post-partum family-planning funds provided to women under the state's Medicaid plan may be used to cover the cost of abortion services or counseling, or to make direct referrals for abortions. Family-planning services begin with delivery and continue for two years. Va. Code Ann. § 32.1-325 (Enacted 1999; Last Amended 2007).
Insurance Prohibition for Abortion
Benefits provided to state employees through the Commonwealth of Virginia Health Benefits Plan may not provide coverage for abortion unless: (1) the procedure is necessary to preserve the woman's life; (2) the pregnancy is the result of rape or incest that has been reported to a law enforcement or public health agency; or (3) a physician certifies that the fetus is believed to have an incapacitating physical deformity or mental deficiency. Va. Dep't of Human Resource Mgmt., Mem. No. 96-9 (May 31, 1996); Va. Dep't of Human Resource Mgmt., COVA Care Member Handbook, (July 1, 2007) at http://www.dhrm.state.va.us/hbenefits/hbhandbooks/COVAHDHPMemberHandBk2007.pdf.
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Virginia allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Individuals, physicians, hospitals, or medical facilities.
What does the refusal clause allow? Any person who objects in writing on personal, ethical, moral, or religious grounds may not be required to participate in procedures that result in an abortion. No physician, hospital, or medical facility may be required to admit a woman for the purpose of performing an abortion. The refusal of a person, hospital, or medical facility to participate in an abortion may not be a basis for a claim for damages, denial of employment, disciplinary action, or any other recriminatory action.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Va. Code Ann. § 18.2-75 (Enacted 1975).
FAMILY PLANNING REFUSAL CLAUSE
Virginia allows certain individuals or entities to refuse to provide family planning and birth control services.
To whom does the refusal clause apply? Hospitals.
What does the refusal clause allow? No hospital operating under the auspices of a religious institution, that objects on the basis of religion, may be required to distribute lists of family planning clinics to maternity patients prior to their release.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for family planning and birth control services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Va. Code Ann. § 32.1-134 (Enacted 1979).
Restrictions on Low-Income Women's Access to Abortion
Virginia prohibits public funding for abortion for women eligible for state medical assistance for general health care unless: (1) the physician certifies that the woman's life or health would be substantially endangered if the fetus were carried to term, after taking into consideration all physical, emotional, psychological, familial factors, including the woman's age, relevant to the well-being of the woman; (2) the pregnancy is a result of rape or incest that has been reported to a law enforcement or public health agency; or (3) a physician certifies that the fetus will be born with a gross and totally incapacitating physical deformity or mental deficiency. Va. Code Ann. §§ 32.1-92.1, -92.2 (Enacted 1982); 12 Va. Admin. Code §§ 30-50-110(A)(2), -140(F); Va. Dep't of Medical Assistance Servs., Physician Manual, ch. IV, p. 45 (April 21, 2008) at http://websrvr.dmas.virginia.gov/manuals/phy/chapterIV_phy.pdf.
Restrictions on Young Women's Access to Abortion
Virginia law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 18 who has never been married, is not a member of the armed services, and is not otherwise emancipated.
What is required - parental notice or parental consent? Both notice and consent.
Who must have knowledge and provide consent? One parent.
Are there other trusted adults who may have knowledge and provide consent instead? Yes, an "authorized person," including a parent, legal guardian, or another adult including a grandparent or adult sibling, with whom the young woman resides and who has care and control of her.
What is the process for providing notice and obtaining consent? A young woman may not obtain an abortion until at least 24 hours actual notice has been given in person or by telephone by the attending physician to an authorized person and the physician has obtained notarized written consent from such authorized person. If actual notice is not possible after a reasonable effort and constructive notice is given by certified mail, such notice must be mailed at least 72 hours prior to the abortion.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, but only in limited circumstances. An unlawful sexual act must have been committed, or allowed to have been committed, by a parent or another person responsible for the minor's care. The physician must have reason to believe the minor's declaration regarding the sexual abuse and must report it to the local or state department of social services.
May the parental mandate be waived if a young woman is a victim of child abuse? Yes, if the physician has reason to believe the minor's declaration that she is an abused or neglected child and reports the suspected abuse to the local or state department of social services.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies in writing that a medical emergency exists. A medical emergency is defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which a delay will create "a serious risk of substantial and irreversible impairment of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? The young woman must secure a court order stating either that the minor is mature enough and well enough informed to make her decision independent of the wishes of an authorized adult, or that an abortion is in her best interests. However, once a judge authorizes an abortion based on a finding that it is in her best interests, the attending physician must notify the young woman's authorized person of the intent to perform an abortion, unless such notice is not in the young woman's best interests. The judge must find that notice is not in the best interests of the young woman, if one or more authorized persons with whom she resides is abusive or neglectful, or that every other authorized person is either abusive or neglectful or has refused to accept responsibility for her.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? No.
Other information about the law: None.
Va. Code Ann. § 16.1-241(V) (Original Statute Enacted 1973; Relevant Provision Enacted 1997; Last Amended 2007).
Targeted Regulation of Abortion Providers (TRAP)
Virginia imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Virginia places medically unnecessary restrictions on where abortions may be performed.
Virginia requires all second trimester abortions be performed in a licensed general hospital or outpatient hospital. Va. Code Ann. § 18.2-73 (Enacted 1975), Va. Code Ann. § 32.1-123 (Enacted 1979; Last Amended 1989); 12 Va. Admin. Code § 5-410-10.
The U.S. Supreme Court upheld the constitutionality of Virginia's second trimester hospitalization requirement, finding it to be reasonably related to the state's compelling interest in protecting maternal health. The Court distinguished Virginia's hospitalization requirement from those at issue in Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983), which held that a second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion, because the Virginia requirements allow for an "outpatient surgical hospital" as an alternative. Simopoulos v. Virginia, 462 U.S. 506 (1983).
Restrictions on Who May Perform Abortions
Virginia prohibits certain qualified health care professionals from performing abortions.
Only a physician licensed by the state to practice medicine and surgery may perform an abortion. Va. Code Ann. §§ 18.2-72, -73, -74 (Enacted 1975).
PRO-CHOICE LAWS
Low-Income Women's Access to Family Planning
Virginia provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for all men and women with incomes at or below 133% of the federal poverty level and for women who would otherwise lose coverage postpartum.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: family planning office visits, laboratory visits for family planning, education and counseling, FDA-approved prescription and over-the-counter contraceptives, diaphragms, contraceptive injectables, contraceptive implants, and sterilizations.
The waiver will expire on Sept. 30, 2010.
Plan First: Va.'s Family Planning Services Program Provider Fact Sheet, Va. Dept. of Medical Assistance at http://www.dmas.virginia.gov/downloads/pdfs/ch-planfirst_prov_facts.pdf (last visted Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
OTHER LAWS
Post-Viability Abortion Restriction
Virginia's post-viability abortion restriction provides that no abortion may be performed after the second trimester unless the attending physician and two other physicians certify in writing that continuation of the pregnancy is likely to result in the woman's death or "substantially and irremediably impair" the woman's physical or mental health. Measures for life support "must be available and utilized if there is any clearly visible evidence of viability." Va. Code Ann. § 18.2-74 (Enacted 1975).
A court held that the provision regarding life support does not impose an affirmative duty to preserve fetal life during the pre-viable stages of pregnancy. Simopoulos v. Commonwealth, 277 S.E.2d 194 (Va. 1981).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions so long as they contain adequate exceptions to protect the life and health of the woman. NARAL Pro-Choice America opposes Virginia's post-viability restriction because the health exception is dangerously narrow. NARAL Pro-Choice America also opposes this law to the extent that it prohibits pre-viability abortions by defining viability at the beginning of the third trimester. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside of a woman's body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. Colautti v. Franklin, 439 U.S. 379, 388-89 (1979).
