Virginia abortion battle could come down to how voters feel about the word ‘ban’

Parties push dueling messages about scope of Youngkin’s 15-week cutoff

By: - October 26, 2023 12:57 am

Protesters gathered outside the state Capitol in Richmond in 2022, hours after the Supreme Court ruled it would overturn abortion protections established under Roe v. Wade. (Kate Masters/ Virginia Mercury)

During Virginia’s 2021 election, former Democratic Gov. Terry McAuliffe warned that Texas’ push to ban almost all abortions could spread across the country unless states took action to protect abortion rights.

That note of alarm two years ago didn’t resonate with voters as much as McAuliffe wanted. He lost to Gov. Glenn Youngkin, a Republican who mockingly said McAuliffe was running to be an “abortion governor” instead of a “jobs governor.”

But one big part of McAuliffe’s prediction came true. As he said it might, the U.S. Supreme Court overturned Roe v. Wade in 2022, clearing the way for states to pass sweeping abortion bans and infusing Virginia’s abortion debate with new energy and significance. Since the fall of Roe, Youngkin has marched with anti-abortion activists in Richmond and rallied the Virginia GOP behind a proposal to restrict abortion access after 15 weeks of pregnancy.

Youngkin vows to ‘protect life’ as Supreme Court overturns right to abortion

With control of the Virginia General Assembly up for grabs next month, that changed political dynamic has Democrats hoping voters want to punish Republicans over the rollback of abortion access that would arrive in Virginia if Youngkin’s party wins majorities in the state Senate and the House of Delegates.

The key difference between 2021 and 2023, according to Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia, is that the loss of the constitutional right to abortion is no longer a hypothetical concern. No matter how hard Republicans try to finesse their way out of an unpopular position, she said, abortion rights supporters are “fired up” to cast their ballots accordingly.

“People will see that a ban is a ban,” Lockhart said. “And that politicians can’t run away from their decades of anti-abortion votes.”

A strong Democratic performance on Nov. 7, when all 140 Virginia General Assembly seats are on the ballot, would end the GOP’s dream of completing a Youngkin-led revival of conservative power in a state that’s gone blue in every presidential election since 2008. Republicans winning full control would likely boost Youngkin’s profile as a rising Republican leader charting a new path through some of his party’s toughest political branding problems. 

Both the Virginia Senate, where Democrats have a 22-18 majority, and the House, where Republicans had a 52-48 majority prior to a wave of post-session resignations, are closely divided enough that both parties have realistic shots at winning one or both chambers. In light of that highly competitive atmosphere, Virginia’s abortion-centered election cycle has drawn national attention as the next test of how long the string of post-Roe special election wins for Democrats around the country will continue.

On a recent press call organized by the Democratic Legislative Campaign Committee, Democratic strategist Tom Bonier said Virginia’s early voting data shows strong engagement by Democratic voters, but all signs point to a “very close election.”

“Since Dobbs, we’ve seen this Democratic overperformance that’s been fairly consistent,” Bonier said, referring to last summer’s Supreme Court decision that scrapped the Roe precedent and empowered red states to pass strict abortion bans.

‘What they’re selling is not true’

Republicans, who have the newfound advantage of a decently popular governor raising millions to support their statehouse candidates, aren’t exactly ducking the abortion fight. They’re arguing aggressively that a 15-week cutoff — with exceptions for cases of rape and incest and to protect the life of the mother — is a middle-ground position closer to the laws in many socially liberal European countries than it is to the draconian proposal portrayed in Democratic ads.

Youngkin and his allies hope their abortion messaging, which the governor’s PAC is pushing in a $1.4 million ad campaign, can mute the swing-district backlash and prevent the 15-week proposal from becoming a dealbreaker for voters also concerned about the economy, crime and other issues more favorable for their party.

“There’s a reason why this is the only note they’re hitting,” House Speaker Todd Gilbert, R-Shenandoah, said of the barrage of Democratic ads on abortion. “But they keep having to run up against the fact that what they’re selling is not true.”

For weeks, Republican operatives have cried foul over Democratic ads they say attempt to mislead voters into believing Virginia Republicans are pushing for a complete abortion ban with no exceptions.

In one example from a competitive Senate race in the Fredericksburg area, Democratic candidate Joel Griffin ran an ad accusing Del. Tara Durant, R-Fredericksburg, of backing an abortion ban without exceptions that would “force a 10-year-old rape victim to carry to term.” Durant, who says she supports a rape exception, called the ad “brazen fearmongering” and noted the Griffin campaign’s citation for its claim was a Facebook post in which she praised the fall of Roe as “a great day for life” but said nothing about child rape victims.

Abortion-rights supporters say there’s good reason to be distrustful of the GOP’s newly moderate tone on abortion, given the numerous examples of staunchly anti-abortion comments Republican figures have made in more unguarded moments.

“We’ve seen across the South and across the country what happens when Republicans get a majority. They don’t just institute a ban, they become more punitive over time,” said Del. Schuyler VanValkenburg, D-Henrico, who’s trying to flip a key GOP-held district represented by Sen. Siobhan Dunnavant, R-Henrico. “Maybe it starts at 15 weeks and becomes six weeks.”

After a GOP rally in battleground Henrico County this week, Youngkin said he’s been specific about what he and his party will support and thinks people are “ready to move on and talk about topics besides abortion.”

“They are all about no limits,” Youngkin said of the Democratic Party. “We are for reasonable limits. And we’ve been wholly clear on what we want to do. I think the other side is really trying to sell disinformation.”

Republican leaders have pushed back on claims the 15-week proposal they’re campaigning on might not actually reflect their true position.

“I’ve been asked would I sign a different bill,” Youngkin said. “No. That’s the bill that I’m going to sign.”

Gov. Glenn Youngkin attended Virginia’s fourth March for Life, an annual anti-abortion event held outside the Capitol, on April 27, 2022. (Kate Masters/ Virginia Mercury)

Public polling on abortion in Virginia has consistently shown that most voters don’t support sweeping new restrictions. But when asked specifically about the 15-week proposal, voters are closer to an even split.

For that reason, Virginia’s abortion debate partly comes down to a semantic battle over the poll-tested word “ban.”

Democratic candidates say it’s a perfectly valid term to apply to Youngkin’s proposal, because some abortions that are legal in Virginia today would become illegal if the governor’s bill becomes law. As the last Southern state that hasn’t passed more restrictive abortion laws after Roe was overturned, abortion-rights advocates say any winnowing of access in Virginia will also affect women in nearby states who might consider coming here for procedures no longer available to them at home.

Republicans insist the term “ban” is an inaccurate description of a law that would keep abortion legal during the first four months of pregnancy, when the overwhelming majority of abortions occur, while allowing several exceptions beyond that point.

‘A firm law that should not be touched’

Many Democratic candidates in competitive races have said they support keeping the state’s abortion laws as they are and/or enshrining the right to an abortion in the Virginia Constitution.

On the DLCC call, multiple Democratic lawmakers emphasized that they didn’t push for a broad overhaul of Virginia’s abortion laws when they had full control of the statehouse in 2020 and 2021.

“We wrote a firm law that should not be touched,” said Sen. Monty Mason, D-Williamsburg, who’s trying to hold off a challenge from Republican Danny Diggs, the former sheriff of York County and the city of Poqouson.

Democrats used their period of majority power to repeal some abortion rules like mandatory ultrasounds and waiting periods but didn’t push to lift the ban on third-trimester abortions.

Unlike other states, where activists have led referendum efforts to let voters weigh in on abortion rights, Virginia’s system requires all constitutional amendments to originate with the General Assembly. Once the legislature passes a proposed amendment two years in a row, it then goes on the ballot for a final up-or-down vote by regular Virginians.

“Their side’s campaigning on a ban,” said Del. Danica Roem, D-Prince William, who’s running in a competitive state Senate race in Northern Virginia against Republican Bill Woolf. “Our side is campaigning on a statewide referendum to the people: ‘Do you want to codify the existing protections that we have?’”

A sign outside a clinic that provides abortions in Richmond, Va. (Sarah Vogelsong / Virginia Mercury)

The binary choices on offer in both parties’ talking points (ban vs. no ban, limits vs. no limits) gloss over the nuances of Virginia’s existing abortion laws, which already impose a time-based cutoff for routine procedures but allow late-term abortions when doctors determine there’s a compelling medical reason.

Under current law, abortion is largely unrestricted in the first and second trimesters but is only allowed in the third trimester, which starts at about 28 weeks, if three doctors agree continuing the pregnancy poses a serious threat to the woman’s life or health. Starting in the second trimester, abortions must be performed in licensed hospitals. Virginia law also requires patients under 18 to have written consent from an adult family member before an abortion, but judges can waive the consent rule if the minor objects due to abuse or other reasons.

Democrats in several battleground races have accused Republicans of wanting to jail doctors who perform abortions, and abortion-rights supporters say any tightening of the laws could have broader, chilling effects on doctors who may want to err on the side of caution. Performing abortions outside the bounds of Virginia’s current laws — which exist in a section of state code titled “Crimes and Offenses Generally” — is already punishable as a class 4 felony that can come with prison time.

Prosecutions of doctors under Virginia’s existing laws appear rare, but one high-profile case in the early 1980s received extensive media coverage and rose all the way to the U.S. Supreme Court. In that case, a Northern Virginia physician, Dr. Chris Simopoulos, was prosecuted after a 17-year-old girl who had been more than five months pregnant left an aborted fetus in a motel wastebasket two days after the doctor injected her with a saline solution at his clinic. Despite differing testimony over whether Simopoulos had or hadn’t instructed the teen to deliver the fetus under medical supervision, the doctor was convicted of performing a second-trimester abortion at a clinic instead of a hospital and sentenced to serve 30 days in jail. Both the Supreme Court of Virginia and the U.S. Supreme Court upheld that outcome after Simopoulos challenged the constitutionality of Virginia’s second-trimester rules.

‘This is about who makes decisions’

Democrats have been largely successful in turning the General Assembly races into a referendum on Youngkin’s 15-week proposal without getting into specifics about their counterpush to create a state-level constitutional right to abortion.

The constitutional amendment’s backers portray it as a straightforward effort to block future erosion of abortion access in Virginia, but opponents argue it’s written so broadly it could invalidate existing abortion limits that many Democrats say they support.

Like the GOP’s 15-week bill, the Democratic-sponsored amendment has been unable to pass the politically divided General Assembly.

The proposed amendment declares “every individual has the fundamental right to reproductive freedom” and says that right cannot be denied or infringed “unless justified by a compelling state interest and achieved by the least restrictive means that do not infringe an individual’s autonomous decision-making.” The state only has a valid interest in restricting abortion access, the amendment specifies, when a law is designed to “ensure the protection of the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine.”

56% of Virginia abortions were performed via medication in 2021

During a committee hearing on the amendment earlier this year, Republican lawmakers said the amendment appears to leave no room for the concept of fetal viability. The now-defunct Roe decision only prevented abortion bans until viability, usually defined as beginning around 24 weeks, leaving states free to ban the procedure once a fetus has a significant chance of surviving outside the womb. After viability, the Roe decision said, states have an interest in “the potentiality of human life.”

One of the amendment’s chief sponsors was former state senator turned U.S. Rep. Jennifer McClellan, D-Richmond. After the amendment cleared the state Senate on a party-line vote,  a Republican-led House committee grilled McClellan on whether the proposal could invalidate laws like the third-trimester ban and parental consent rule.

In her committee testimony, McClellan said third-trimester abortions are rare and typically only occur when something has gone “horribly wrong” with a pregnancy and the question of viability has become moot.

“This is about who makes the decisions. And those decisions should be made by patients and their providers,” McClellan said, repeatedly emphasizing that abortion restrictions could still stand if deemed consistent with medical standards.

When asked again if the amendment would create a right to abortion at any point in pregnancy, McClellan said: “I’m not going to give you a different answer.”

“Well I know what it sounds like,” replied Del. Wren Williams, R-Patrick. “It sounds like a yes.”

One high-profile Republican candidate this cycle says Youngkin’s bill doesn’t do enough to accommodate the difficult choices women and health-care providers have to make when something goes wrong late in pregnancy.

Dunnavant, a practicing OB/GYN running in a Democratic-friendly district that’s made her one of the most imperiled Republicans of the 2023 cycle, has said she can’t support a 15-week ban without an additional exception allowing abortions in cases of severe fetal anomalies that leave no realistic chance of survival. At a recent press conference, Dunnavant said she pressed her own party to include that exception and feels it was a mistake to move forward without it.

“We all are beleaguered and fatigued by the extreme language around abortion,” Dunnavant said, specifying that includes extremism from her own side. “And I think people are worried. I think we need to find a way to go forward together.”

In 2019, Republicans in Virginia and beyond accused Democrats of backing “infanticide” after debate over a failed Democratic bill that would have lifted restrictions on second- and third-trimester abortions. In the third trimester, the bill would have allowed one doctor to verify the necessity of an abortion as opposed to three. It also would have lowered the bar for how severe the health threat needs to be to allow a third-trimester abortion.

In the ensuing furor over a video clip of the bill’s sponsor, Del. Kathy Tran, D-Fairfax, saying it would allow abortion up until birth if one doctor felt it was necessary, Democrats accused Republicans of recklessly demagoguing the issue despite third-trimester abortions already being legal under certain circumstances.

The 2019 abortion controversy didn’t stop Democrats from winning full control of the General Assembly later that year. But the party didn’t revive the bill in the ensuing two years of Democratic control when they might’ve had the numbers to pass it.

Despite the disappearance of the 2019 bill, Gilbert, the Republican House speaker, said the proposed constitutional amendment could have a similar effect of allowing “abortion at any point without any limitations.”

Gilbert said the fact that he and other conservative lawmakers are supporting a position that doesn’t necessarily align with their personal beliefs or the public’s views in the parts of Virginia they represent, “speaks volumes” about the seriousness of their effort to arrive at an abortion policy with broad support.

“Some of our candidates are adamantly pro-life but they understand that this is where Virginians are and they have embraced this legislative proposal as a basic framework of where we intend to be,” Gilbert said. “And I have been exceedingly clear that we will not go beyond it as long as I am speaker.”

In a national atmosphere that indicates Republicans are paying a political price over the shock of a conservative Supreme Court eliminating a right that had stood for 50 years, Virginia’s elections could swing on how many voters are buying GOP leaders’ assurances that they’re not interested in forcing the kind of sharp right turn on abortion Virginians would reject.

Asked about Gilbert’s comments, Lockhart, the Virginia Planned Parenthood leader, said the speaker “has voted to restrict abortion access dozens of times.”

“I don’t trust him,” she said.


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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.