Jurisprudence

Virginia Republicans’ Proposed 15-Week Abortion Ban Is Strikingly Extreme

The bill provides an alarming window into what will happen if the GOP retakes the legislature.

Youngkin in a suit and bowtie.
Virginia Gov. Glenn Youngkin. Stefani Reynolds/Getty Images

On Wednesday, Virginia Republicans introduced a bill to criminalize abortion in the commonwealth after 15 weeks of pregnancy. The party is framing the ban as a moderate compromise: GOP Gov. Glenn Youngkin praised it as a “bipartisan consensus,” while the Senate Republican caucus described it as “practical, sensible, and reasonable.”

But these descriptions do not align with the actual text of the law. In addition to outlawing abortion long before viability, the proposal shares several features with the extreme abortion bans adopted by states like Louisiana and Texas. It contains extremely limited exceptions while exposing doctors to criminal liability for performing emergency abortions, including up to 10 years’ imprisonment. In short, the ban would ensure that reproductive health care in Virginia is dictated by criminal law rather than patients and their physicians.

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The measure is unlikely to pass immediately—the day before its introduction, a Democrat won a close race that expanded his party’s control of the state Senate. But it shows voters exactly how Republicans plan to govern, should they seize control of the legislature in next year’s elections.

The new bill, H.B. 2278, does have several features that are absent from other red-state restrictions. It allows abortions after 15 weeks for rape and incest, and includes an explicit exception for ectopic pregnancies. (Several states, including Missouri and Tennessee, lack this exception—forcing patients with ectopic pregnancies to suffer for hours while hospitals await legal clearance to terminate.)

In every other way, however, this measure is unreasonable. For one thing, H.B. 2278 outlaws abortions well before viability, which occurs around 24 weeks. This new cutoff dramatically shortens the amount of time Virginians have to learn that they are pregnant and obtain an abortion. The viability line was enshrined in Roe v. Wade for nearly 50 years, and it is currently reflected in Virginia law, which allows abortions through the second trimester. Republicans want to move back the cutoff by about nine weeks.

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Which leads to the second problem: A large number of fetal anomalies can only be detected after 15 weeks, when scans can show fetal organ structures. Anomalies discovered during this period, such as anencephaly and Trisomy 18, render a fetus “incompatible with life.” That means the fetus will die during birth or shortly thereafter, its brief life spent in terrible pain. Patients who continue their pregnancy after such a diagnosis face heightened risks of serious medical complications.

H.B. 2278’s lack of an exception for even severe fetal anomalies is surely no accident. The anti-abortion movement scorns such exceptions, just as it opposes exceptions for rape and incest. Movement lobbyists support laws that force every patient to carry a pregnancy through birth even if the fetus has a “life-limiting condition.” Although many couples wish to spare their child the agony of a brief, torturous life, H.B. 2278 would prevent them from making that decision.

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There is a third glaring problem with the bill: It rejects a broad exception for the patient’s health in favor of a narrow exception for the patient’s life. H.B. 2278 allows doctors to perform emergency abortions after 15 weeks only after determining that “the continuation of the pregnancy will result in the death of the woman or substantially and irreversibly impair one or more of such woman’s major bodily functions, not including psychological or emotional conditions.” The law directs doctors to use their “best clinical judgment.” But they are subject to incarceration if prosecutors disagree with their assessment and a jury determines that the abortion was unnecessary.

This boilerplate language is found in many other states’ bans, and it has already led to many harrowing cases in which women in medical crises were forced to the brink of death before obtaining an abortion. Why? A number of common medical conditions can harm pregnant patients without guaranteeing their death. Under laws like H.B. 2278, doctors must wait until these conditions spiral into a crisis before terminating. And even when a crisis arises, it’s legally ambiguous when a life is sufficiently endangered to justify an abortion. Is a 10 percent chance of death acceptable? 50 percent? 75?

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These are not the questions doctors want to ask when a pregnant patient is experiencing a medical emergency. Yet in much of the country, they have no choice. Since Roe’s demise, patients have been forced to risk hemorrhage and sepsis before doctors will terminate. Even when a pregnancy is obviously failing, laws like H.B. 2278 do not allow termination. That’s why patients undergoing massive blood loss and excruciating pain have been denied care in red states, instructed to wait until they are more clearly dying. If Youngkin’s ban passes, Virginia would join these states in compelling doctors to risk imprisonment when performing emergency abortions after 15 weeks.

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There’s one final oddity buried in H.B. 2278. Emergency abortions for minors are especially fraught because Virginia already requires parents to consent to their children’s abortions. (Alternatively, minors can petition a court for permission to terminate.) That restriction adds an extra layer of complication when a minor arrives at the hospital with a pregnancy-related medical crisis. Even outside the abortion context, parents typically have a right to make health care decisions for their children. But what if a parent can’t be reached when a minor patient’s life is at risk?

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Currently, Virginia law allows doctors to exercise their “good faith clinical judgment” when providing minors with emergency abortions, even when their parents do not or cannot consent. That standard provides a shield against prosecution, protecting doctors as long as they acted in “good faith” in line with appropriate standards of care. H.B. 2278 would revoke that standard. It would inject uncertainty into pregnant minors’ medical emergencies, compelling doctors to weigh their own medical judgment against the possibility of criminal charges.

The night before Republicans introduced their new abortion ban, Virginia voters effectively ensured that it will never pass. On Tuesday, Democrats won a special election that flipped a seat in the state Senate, giving them a 22–18 majority. The Democratic candidate, Aaron Rouse, campaigned on protecting abortion rights, and his victory all but guarantees that H.B. 2278 will die in the state legislature. Youngkin and his legislative allies appear eager to push the ban anyway. They have shown the commonwealth what maternity care would look like if the GOP had complete control of the government. Voters will decide whether to make their vision a reality.

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