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What happens in Virginia if Roe v. Wade is overturned?

People hold signs
People protest outside of the Federal Courthouse in Richmond on Tuesday night. (Photo: Scott Elmquist/Style Weekly)

Whittney Evans and Ben Paviour reported this story

This story was updated May 3 at 4:08 p.m. to include an additional interview.

A leaked draft of a U.S. Supreme Court decision overturning Roe v. Wade has supercharged a debate over aborition access in Virginia, even if its immediate implications remain unclear. 

Without legislative action, abortions before the third trimester will remain legal in Virginia. But Republicans are one vote away from controlling the state Senate and already hold the House of Delegates and the governor’s office. The Democrat's “brick wall” in the state Senate is fragile; Sen. Joe Morrissey (D-Richmond) has sided with Republicans in a handful of recent votes related to abortion and said earlier this year he supported restricting abortions past 20 weeks.

Gov. Glenn Youngkin publicly voiced support during his campaign for a “pain threshold bill” that would cap abortions at 20 weeks and carve out exceptions for rape and incest. Speaking to reporters at an unrelated event on Tuesday, Youngkin said he is “pro-life” and supports allowing individual states to come up with their own abortion policy. But he declined to say whether he would support a new ban in Virginia, saying he would wait for a final decision from the court.

“There's a lot of common ground on this topic,” Youngkin said. “We want fewer abortions in Virginia, not more. We in fact don't believe that you should be able to get an abortion all the way up through and including birth. We in fact think the parents should be engaged in their children's lives, particularly making tough decisions with children who are minors.”

Youngkin also took aim at the leak of the document, which was published by POLITICO Monday night. It indicates the court’s conservative majority plans to roll back abortion rights in the country. Youngkin said the leaker was “trying to create chaos and put pressure on public officials and elected officials.”

The opinion is not final until it is published, likely in the next two months. Should it hold, it will open the door for states to stamp out abortion access. According to the pro-abortion-rights research group Guttmacher Institute, 26 states have laws in place that will completely ban abortion if Roe v. Wade is overturned. Virginia is not among those states with so-called trigger laws and had 32 facilities providing abortions as of 2017, according to a survey done by the institute.  

Earlier this year, Republicans in the House of Delegates opted not to hear a GOP bill that would have banned abortions after 20 weeks, saying it didn’t have the votes to clear the Senate. 

Both chambers are up for election next year under new maps, though a pending lawsuit seeks to have the members of the House of Delegates run again this year. If that succeeds, Republicans could expand their current two-seat majority or lose it to Democrats.

Virginia Democrats repealed several abortion restrictions when they took control of the General Assembly in 2020. They ended requirements that women receive ultrasounds and wait 24 hours before they can have an abortion, eased so-called TRAP laws restricting the design and procedures of abortion clinics and allowed insurance plans sold on the state-run marketplace to cover the procedure.

State Sen. Jennifer McClellan (D-Richmond), who sponsored one of the more sweeping laws, said the state had become “a safe haven for access to abortion” under Democratic control. McClellan said she believed the party had the votes to block abortion restrictions in committee, where they hold a larger majority.

“We're going to push to expand our majority and take back the House and fight the efforts to roll back that progress,” she said.

Virginia House Democratic Caucus Chair Charniele Herring said in a statement that “should this draft opinion become final, people will die.” 

“Be assured that we will do everything in [our] power to stop any attempt by Governor Youngkin or Republican legislators to undermine reproductive rights in Virginia,” she said. 

Republicans wrested control of the Virginia House of Delegates, the governor’s office and the Office of the Attorney General in the November 2021 election.

On the campaign trail, Youngkin was recorded saying he couldn’t risk moderate votes by focusing on abortion. He’s recently become more vocal about his anti-abortion stance. He attended Virginia’s fourth annual March for Life, an anti-abortion event last week. He also appointed a new diversity officer whose responsibilities include “promoting ideas, policies, and practices to eliminate disparities in prenatal care, and be an ambassador for unborn children.” 

Youngkin said previously he would not have signed the Texas abortion law, calling it “unworkable and confusing.” The law bars abortion after six weeks except when a pregnant person is facing a life-threatening or disabling medical emergency. The state circumvented constitutional concerns by delegating enforcement to private citizens, who can file civil lawsuits against anyone who helps a pregnant person obtain an abortion.

Abortions are funded by tax dollars in Virginia under limited circumstances, including cases of rape or incest, when the birthing parent’s life is endanger or, in some instances, when the fetus has a severe health condition.  Abortions are illegal after the second trimester unless the life or permanent health of the pregnant person are at risk.

Karen Hult, a professor of political science at Virginia Tech, said Youngkin’s relatively muted reaction to the verdict reflected both the state’s political map and perhaps also his presidential ambitions. The issue likely played a role in the suburban losses the GOP experienced under former President Donald Trump, she said.

“I really think it has to do with looking at their own districts and thinking, ‘Oh, we got to be careful, because we may be losing some voters here,’” Hult said. “They have to be really guarded about their reaction.”

But Jimmy Keady, the owner of GOP consulting firm JLK Political, said he expected Democrats to hammer at the issue and urged Republicans to be ready. He predicted an increase in campaign funds on both sides of the issue at the state level, where the policies will be hashed out.

“For the last couple of decades. Republicans could pick and choose whether or not they talk about this issue,” he said. “But this is going to be something that we're going to have to talk about now because state legislators are going to be ruling on this stuff.”