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).