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Post-Viability Abortion Restriction

Virginia's post-viability abortion restriction states that no abortion may be provided 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, Last Amended 2009).

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 abortion so long as they contain adequate exceptions to protect the woman's life and health.  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 abortion 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 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).

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