Could a 20-week abortion ban pass the General Assembly?

Lawmakers from both parties give mixed signals

By: - February 7, 2022 12:04 am

Thousands of abortion opponents rallied at the Capitol in 2019. (Ned Oliver/Virginia Mercury)

Last week Virginia lawmakers began hearing legislation that would impose a range of new abortion restriction in Virginia.

The bills would ban most abortions after 20 weeks, reimpose a 24-hour waiting period, and — in response to an infamous radio interview given by former Gov. Ralph Northam — create felony penalties for doctors who don’t take certain steps in rare cases in which abortions result in live births.

Democrats in the Virginia Senate, where the party still holds a 21-19 advantage, have promised to be a “brick wall” against such proposals from Republicans in the House of Delegates and Executive Mansion.

But in the case of abortion legislation, that wall would appear to have a Joe Morrissey-sized hole in it.

The Democratic senator from Richmond, who has long described himself as pro-life, not only says he would support a 20-week abortion ban, but that he is considering working with Republicans in the chamber to side-step the committee process that would otherwise let Democrats block the legislation from ever arriving on the floor of the chamber for an up or down vote.

“I’m telling you how my heart has felt since I was 13,” Morrissey said last week. “It doesn’t take rocket science to figure out where I’m going with this.”

While Morrissey said there was no question he would support legislation that would narrow the window for most abortions from 25 weeks to 20 were it to come for a vote before the full Senate, he made clear he has not decided whether he’d help the GOP with procedural maneuvers necessary to get it there.

Morrissey does not sit on the Education and Health committee that hears abortion legislation, which is stacked with Democrats and almost certain to vote down any new restrictions, blocking them from progressing to a full vote before the chamber.

Sen. Joe Morrissey, D-Richmond. (Photo by Ned Oliver/Virginia Mercury)

But there are alternative avenues to a floor vote. Provisions could be proposed as budget amendments if a link can be made to the state’s finances. They could also be inserted into other legislation as a floor amendment in limited circumstances. Or a simple majority of lawmakers could vote to skip the committee process, called a motion to discharge.

The latter is a rare step and is typically unsuccessful, because even when lawmakers agree with legislation blocked by their party, caucuses typically hold together on procedural votes.

It’s also not clear that Republicans would be on board.

While Morrissey is flirting with the idea of siding with the GOP, Republican leaders in the Senate said they would be unlikely to support sidestepping the committee process even if it meant they could advance legislation they support.

“Institutionally, I’m against discharging committees,” said Senate Minority Leader Tommy Norment, R-James City. “It’s highly unusual and I could not be persuaded to do it. That does not mean others wouldn’t.”

It also remains to be seen how Republicans in the House will handle the 20-week bill. After they won back control of the House of Delegates and Executive Mansion in November, then-Del. Todd Gilbert, R-Shenandoah, who has since been elected speaker of the house, dismissed questions from news reporters about whether the GOP would pursue changes to the state’s abortion laws.

“You didn’t hear our caucus running on those things,” he said at the time. “We’re going to stay focused on the things we believe the majority of Virginians want us to focus on.”

That has not stopped GOP lawmakers in the chamber from filing at least three bills on the issue. Two were heard and advanced by sub committees Friday: the legislation reinstating a 24-hour waiting period and creating criminal penalties for doctors in certain cases.

Supporters argued the 24-hour waiting period would ensure women were informed of potential risks to abortion and alternatives to the procedure. It does not go as far as the legislation repealed by Democrats in 2021, which mandated an ultrasound. The legislation also allows the information to be provided over the phone rather than in person, meaning it would not necessarily require two trips to a clinic, a barrier that in the past has drawn legal challenges.

Opponents called the legislation unnecessary because providers are already having in-depth conversations about the procedure and its alternatives. “This just causes patient confusion and it really interferes with the relationship that I’m building with these women and their families,” said Anne Logan Bass, a nurse practitioner at Planned Parenthood. “I can assure you informed consent is happening. … This is occurring.”

The House has also advanced legislation proposed by Del. Nick Freitas, R-Culpeper, that would allow authorities to pursue felony charges against abortion providers who fail “to provide care and treatment to an infant born alive.” Freitas said his legislation was inspired by remarks Northam, a pediatric neurologist, made in 2019 about how providers would respond to the birth of a child with severe fetal abnormalities, which Republicans widely condemned as an endorsement of infanticide. Health care professionals who testified Friday called the legislation unnecessary and warned it would mandate behavior that didn’t meet professional standards of care in some cases.

Del. Nick Freitas, R-Culpeper, speaks on the floor of the House of Delegates. (Ned Oliver/Virginia Mercury)

So far the 20-week abortion ban, titled the “Pain-Capable Unborn Child Protection Act,” has not been docketed in the House and a spokesman for Gilbert said he did not know whether it would be given a hearing.

A companion bill will be heard in the Senate this week after emerging from a subcommittee on a 4-4 vote split along party line.

Currently, elective abortions are allowed up to 25 weeks. After that, abortions are only allowed if three doctors certify that the continuation of the pregnancy would result in death or significant harm to the mother. (Most abortions take place in the first 13 weeks of pregnancy.)

Under the proposed legislation, abortion would only be permitted after 20 weeks in cases that “the mother has a condition that so complicates her medical condition as to necessitate the abortion to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function.”

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Ned Oliver
Ned Oliver

Ned, a Lexington native, has been a fulltime journalist since 2008, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. He was named Virginia's outstanding journalist for 2020 by the Virginia Press Association.