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What’s next for abortion rights in Virginia?

Supreme Court Chief Justice John Roberts has called for an investigation into the source of the recent, unprecedented document leak. Consequences could be dire for the person responsible for sharing the draft of a majority opinion overturning both 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey. Potential consequences for the public at large, and for the Justices themselves, have been the focal point of dialogue since news of the leak broke on Monday night.

Constitutional law professor Douglas Laycock at the University of Virginia said in an interview with VPM News that the sharing of this document, which lists five of the court’s conservative Justices as agreeing with reversing both Roe and Casey, puts pressure on those justices. Laycock says that while the source of and the motive behind the leak remain a mystery, the impact is clear.

“We don’t know who did it. We don’t know why they did it. But maybe the most likely explanation is to create that kind of pressure now. Because if that final opinion is any weaker than the current draft when it finally comes out, there will be cries of betrayal,” Laycock says.

There is precedent for justices changing their minds before opinions are released in the case of 2012’s National Federation of Independent Business v. Sebelius. In that challenge to the individual mandate, which was the heart of the Affordable Care Act, also known as Obamacare, Roberts joined with the court’s four liberal justices to affirm the government’s right to impose a monetary penalty on individuals without health insurance, effectively saving Obamacare.

In the aftermath of the 2012 Sebelius ruling, CBS News reported that “unnamed sources” within the court had revealed that Roberts had initially sided with conservatives before changing his vote to uphold Obamacare. The notion of a changed vote by Roberts drew ire from conservatives and potentially altered his legacy. Laycock says this week’s leaked document may be an attempt by one or more anti-abortion individuals with access to court documents to coerce the court’s conservatives to fall in line.

Laycock, like Roberts, reminds people that the leaked document is not an actual decision but merely a draft of what may become the decision. Still, the professor says there would be significant legal ramifications if Roe and Casey were overturned.

“It removes all Constitutional restraints, so the states can enact whatever they want, or Congress if Congress could ever agree, but that seems pretty unlikely,” he says. “Red states will immediately ban all or nearly all abortions. Blue states will not, and then the fight will be ... [whether] the red states control out-of-state abortion.”

Conservative legislatures in so-called “red states” won’t stop there, predicts Laycock. “They'll try to make it illegal to go out of state for an abortion. They will try to make it illegal to order the abortion pills through the mail. There are already a couple of blue states offering sanctuary and saying, ‘We will help women get here.’ This is not going to ease the political battle. But it will make it extremely difficult for women of modest income to ever get an abortion in red states. And it may make it difficult for middle class and wealthy women.”

Timeline produced by Samantha Willis, Angie Miles, and Angela Massino for VPM News Focal Point.
 

Virginia state legislators say what is written in the draft opinion is what they have been expecting for some time. Del. Sally Hudson (D-Charlottesville) says, “I think we knew this would be the last year with Roe in this country. I don't think we knew the news would break like this. … That was a surprise. But we all knew we’d get here in the next few months one way or another.”

Hudson says Virginians don’t need to worry about losing immediate access to abortion, no matter what the Court rules.

“The first thing Virginians need to know is their right to abortion is protected in our state laws. So, no matter what the Supreme Court does, abortion will remain legal in Virginia for now,” she says.

She adds that it’s more important than ever for Virginia to remain a safe haven for women from so-called red states, those under Republican control, seeking abortions where they are still legal. She says that apart from legislative action on reproductive rights, she and her Democratic colleagues are watchful of the current Republican administration, on the chance that they might try to impose restrictions that would become hardships for those choosing abortion.

Gov. Glenn Youngkin’s response to the leak of the draft opinion has been outrage. In a written statement, the governor strongly condemned the leak as an insult to the sanctity of the Supreme Court. He also alleged that the culprit is hoping to put pressure on not only justices but also elected officials. Both Youngkin and Lt. Gov. Winsome Earle-Sears hold anti-abortion positions, and both participated in the Virgnia March for Life on late last month. Youngkin cautions that no one should be swayed by this leaked information, and he says that his administration will continue focusing on governing the state, including lowering taxes and passing a budget, while we wait for an official ruling from the court.

The lieutenant governor did not issue a statement on this week’s leak, however, she stated in an interview with VPM News in December 2021 that if there were any new limits placed on abortion in the commonwealth, she would insist on exemptions for the life and health of the mother. This was Earle-Sears' reply when asked specifically about her position on a possible 20-week abortion ban that then-candidate Youngkin had touted during the campaign. In 2021, Youngkin had proffered that such a ban might include exceptions for instances of rape and incest. The governor has not publicly renewed that position since taking office and said last week that he is content to wait for a decision from the Supreme Court.

Legislatively, there is no clear path forward to make any meaningful changes to Virginia’s existing abortion law — neither to weaken nor to strengthen the law. The House of Delegates is under Republican control by a margin of 52-48. The Senate is in the Democrats’ hands, 21-19. In 2023, all 40 Senate seats and all 100 House seats will be up for reelection. Hudson, who declares herself a proud Millennial, says that her generation has never known a world without the protections provided by Roe v. Wade, and she says that many people believed that battle had been fought and won and was over. Now, however, she says the likely overturn of Roe is the culmination of calculated moves by the right to undo what was settled in the 1970s.

“I think that the difference is this time around that public opinion is on the side of protecting everyone's rights to their own bodily autonomy. And the real question is, is our democracy resilient enough to make those voices heard,” she says.

Regardless of whether a voter is anti-abortion or pro-abortion-rights, Hudson says that in 2023 and beyond, every election will be about abortion rights.