Take Action
State Laws

Virginia


Political Information

Executive (Governor)

Pro-choice

Senate

Anti-choice

House

Anti-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

Description:

Virginia imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.  

Restrictions on Where Abortion Services May Be Provided

Among the most common TRAP regulations are those restricting the provision of abortion services to hospitals or other specialized facilities, which place medically unnecessary and costly requirements on doctors and can decrease the availability of abortion care for women. Virginia has such regulations, including: Any facility that provides five or more first-trimester abortion services per month must become licensed as a category of hospital subject to unique administrative, record-keeping, personnel, and patient-care requirements. Va. Code Ann. § 32.1-127 (Enacted 1979; Last Amended 2011). Any employee of the Virginia department of health has the right to enter the premises of any licensed abortion facility. All licensed facilities are subject to periodic and unannounced inspection, to occur at least once annually, and at any additional time. The regulations offer minimal protections for patient privacy or confidentiality.  Further, the regulations grant state inspectors access to a list of all current patients as well as patient records. 12VAC5-412-100. Va. Code Ann. § 32.1-135 (Enacted 1979; Last Amended 2011).  

Prior to October 2016, Virginia’s regulatory scheme included extensive physical-plant requirements, which were more far-reaching than those in any other state.  In addition to state and local codes and zoning and building ordinances, the regulations incorporated into law several chapters of a book of exhaustive guidelines for construction of new health-care facilities (Guidelines, Facility Guidelines Inst., 2010 ed.), including many requirements not medically related, such as:  specifications for the type of fabric used on window coverings; requiring widths of five feet for public hallways and 3.8 feet for staff corridors, as well as requisite ceiling heights for the boiler room; and mandating that a provider have four parking spaces per procedure room. 12VAC5-412 Draft Emergency Regulation and Notice of Intended Regulatory Action Agency Background Document. However, in September 2015, in response to a gubernatorial order for a periodic review of the regulations, the Virginia Board of Health proposed amendments to the regulations for the licensure of abortion facilities, including regulations that would "grandfather" existing abortion facilities so they would not be required to comply with architectural standards intended for new hospitals.  

In October 2016, in the wake of the Whole Woman’s Health v. Hellerstedt decision that reiterated the undue burden standard, the Virginia Board of Health voted to adopt final amendments to the regulations for the licensure of abortion facilities. Among other amendments designed to meet the standard articulated by the Court in Hellerstedt, the Board resoundingly recommended the wholesale elimination of sham design, construction, and physical plant requirements for all abortion facilities—existing and new—in the Commonwealth. The amendments were adopted by the Board of Health in Fall 2016, were certified by then-Gov. McAuliffe in January 2017, and went into effect March 2017. Anti-choice organization The Family Foundation waited until the end of the public comment period to announce its lawsuit challenging the amendments.

Itzel v. Virginia State Board of Health

Virginia requires all second-trimester abortion services be provided 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, 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 Provide Abortion Services

Virginia prohibits certain qualified health-care professionals from providing abortion services.

Only a physician licensed by the state to practice medicine and surgery may provide abortion care.  Va. Code Ann. §§ 18.2-72, -73, -74 (Enacted 1975).


Abortion Rights

Post-Viability Ban

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).


Abortion Bans Throughout Pregnancy: Procedure Ban

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 Fourth 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 Fourth Circuit found the law unconstitutional because it imposes an undue burden on a woman’s right to choose. 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 Fourth Circuit, 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 any abortion procedure that falls within a broad definition (except suction curettage, suction aspiration, and certain dilation and evacuation procedures) a felony, unless necessary to prevent a woman’s death 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 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 had no 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 certain second-trimester abortion procedures and has no 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.


Biased Counseling

Biased Counseling

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).


Mandatory Delays

Mandatory Delay

Virginia requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the procedure. Va. Code Ann. § 18.2-76 (Enacted 1997; Last Amended 2003).


Insurance Coverage & Abortion

Prohibits Abortion Coverage in the Insurance Exchange

Does Virginia expressly prohibit plans in its state exchange from covering abortion services?

Yes.  Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions only to save a woman’s life, or if the pregnancy is the result of rape or incest.   Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid.  However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.)  VA Code § 38.2-3451 (Enacted 2013).


Prohibits Abortion Coverage for Public Employees

Does Virginia expressly prohibit insurance plans for public employees from covering abortion services?

Yes.  Benefits provided to state employees through the Commonwealth of Virginia Health Benefits Plan may not include abortion coverage, with exceptions only: (1) to save a woman’s life; (2) if the pregnancy is the result of rape or incest that has been reported to a law-enforcement or public-health agency; or (3) if a physician certifies that the fetus is believed to have an incapacitating physical deformity or mental deficiency.  Nothing in the law prohibits the purchase of abortion coverage through an optional rider for which an additional premium is paid.  However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.)  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 2014) at https://www.anthem.com/shared/va/f3/s1/t0/pw_m009142.pdf?refer=ahpfooter&na=cova.


Improves Insurance Coverage of Contraception

Virginia law requires health-insurance plans to cover dispensing of a 12-month supply of prescription contraceptives.

What is required?  Health-insurance plans must cover dispensing of a 12-month supply of self-administered, hormonal, FDA-approved, prescription contraceptives when dispensed or furnished by a provider or pharmacy.

Va. Code Ann. § 38.2-3407.5:2 (Enacted 2017).


Low-Income Women & Abortion

Restricts 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 the procedure is necessary to preserve the woman’s life, the pregnancy is the result of rape or incest that has been reported to a law-enforcement or public-health agency, or 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); H.B. 30, 2010 Reg. Sess. (Va. 2010) (Enacted 2010).


Young Women & Abortion

Parental Consent

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 provide the procedure, 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 2012).


Family-Planning Policies

Insurance Coverage & Contraception

No state measure.

Low-Income Women & Contraception

Supports Low-Income Women’s Access to Contraception

Virginia provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program.  The SPA creates a limited-eligibility group, allowing individuals who do not otherwise qualify for the Medicaid program to obtain family-planning services.  The SPA allows the state to cover family-planning services for women and men with family incomes at or below 205 percent of the federal poverty level who are not currently enrolled in Medicaid and do not have any other health insurance.  Additionally, enrollees must (1) be U.S. citizens or persons who meet the state’s defined immigration requirements, (2) be Virginia residents, and (3) not have had a sterilization procedure.

Beneficiaries of family-planning coverage available through the SPA are not required to pay premiums or co-payments for covered services.  Covered services include: reproductive-health exams, including Pap smear; testing for sexually transmitted diseases; counseling services for family planning; laboratory tests; most FDA-approved prescription and over-the-counter contraceptives; emergency contraception; sterilization.

Virginia State Plan Amendment, 15-0021, at http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/VA/VA-15-0021.pdf.  Virginia Plan First, Fact Sheet, at http://www.coverva.org/mat/Plan%20First%20Fact%20Sheet%20English.pdf.


Emergency Contraception

No state measure.

Other Important Issues

Clinic Protections

No state measure.

Fake Health Centers

State Refers to Crisis Pregnancy Centers

Virginia law refers women to crisis pregnancy centers (CPCs). In connection with the state’s biased-counseling and mandatory-delay law, when a woman tells a health-care provider she is considering abortion, the provider must give her a state-maintained list of facilities that will satisfy the law’s mandate. CPCs are included on the list without disclaimer of their biased nature and are not distinguished from legitimate health centers. Va. Code Ann. § 18.2-76 (Enacted, 2003; Last Amended, 2012).


State has Anti-Choice License Plates

Virginia law provides for a "Choose Life" license-plate program that funnels money to anti-choice organizations. The program is operated by the state Department of Motor Vehicles and drivers are able to purchase the specialty license plate for a fee. A percentage of the fee is retained by the state to recoup administrative costs; the rest of the funds are directed to Heartbeat International, Inc.  Va. Uncodified Law, ch. 775 (2009).


State has Pro-Choice License Plates

Virginia law provides for a "Trust Women/Respect Choice" license-plate program that channels money to pro-choice organizations. The program is operated by the state Department of Motor Vehicles and drivers are able to purchase the specialty license plate for a fee. A percentage of the fee is retained by the state to recoup administrative costs; the rest of the funds are directed to Virginia League for Planned Parenthood.  Va. Uncodified Law, ch. 776 (2010).


Refusals & Guarantees

Refusals of Medical Care

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? Allows individuals who objects in writing on personal, ethical, moral, or religious grounds to refuse to participate in procedures that result in an abortion. Allows physicians, hospitals, and medical facilities to refuse to admit a woman for the purpose of providing abortion care. The refusal of a person, hospital, or medical facility to participate in abortion services 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 information and referrals.

To whom does the refusal clause apply? Hospitals.

What does the refusal clause allow? Allows hospitals operating under the auspices of a religious institution that objects on the basis of religion to refuse to distribute lists of family-planning providers 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 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).

GENETIC COUNSELING REFUSAL

Virginia allows certain individuals to refuse to provide genetic counseling services.

To whom does the refusal clause apply? Genetic counselors.

What does the refusal clause allow? Allows individuals to refuse to provide genetic counseling services that conflict with an individual’s moral or religious beliefs. The law would allow genetic counselors to withhold information regarding a woman’s pregnancy, which could block her from considering all her medical options.

Does the law require the refusing entity to notify the persons affected? Yes.

Does the law require the refusing individual or entity to provide a referral for genetic counseling services? Yes.

Va. Code Ann. §  54.1.2957.18-21 (Enacted 2014).


Counseling & Referral Bans

Counseling & Referral Ban

No 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 abortion.  Va. Code Ann. § 32.1-325 (Enacted 1999; Last Amended 2012).


Everyone should be able to decide if, when, how, and with whom they start or grow a family.

Sign the Petition
By taking this action you are affirming your membership in NARAL Pro-Choice America. What's this?