Abortion To Remain Legal In VA If Roe V. Wade Overturned

VIRGINIA — Virginia lawmakers on both sides of the aisle are outraged by a draft majority opinion reportedly leaked to Politico that suggests the U.S. Supreme Court is poised to overturn Roe V. Wade, the landmark abortion ruling. A final decision on the case is not expected until late June or July.

Virginia Gov. Glenn Youngkin expressed anger that the draft opinion was reportedly leaked, while Democrats in the state are upset with how Republicans blocked a Supreme Court nomination during former President Barack Obama's second term.

Politico reported Monday that it had obtained the draft majority opinion written by conservative Justice Samuel Alito and circulated inside the court that strikes down Roe and Planned Parenthood v. Casey, the case that affirmed a woman’s right to obtain an abortion.

If the court strikes down Roe, abortion rights would be left to the states to decide. Right now, 22 states have laws on their books to ban or restrict abortion, and four more appear poised to do so, according to the Guttmacher Institute, an abortion rights policy group.

Abortion is legal in Virginia. The state also does not have an anti-abortion law that would be triggered if the Supreme Court overturns Roe V. Wade.

If overturned, Democrats in Virginia, who control the state Senate, are vowing to block any attempts by Youngkin and his fellow Republicans to make abortion illegal in the state.

"We will fight every single effort put forward by Governor Youngkin and Republican leadership to criminalize abortion and will ensure that Virginians have access to health care and reproductive health care they need," Democratic Party of Virginia Chairwoman Susan Swecker said in a statement Tuesday.

If Democrats take control of the House of Delegates and retain control of the state Senate in the coming years, Swecker said her party will work to enshrine the protections of Roe V. Wade into the state Constitution.

READ ALSO: Abortion-Rights Protesters Gather Outside Supreme Court In DC

Youngkin said in an interview Tuesday morning with Brandon Jarvis of Virginia Scoop that the leak of the draft Supreme Court opinion is "just a terrible injustice to the Supreme Court and to America." Youngkin contended the goal of the reported leak was "to cause chaos and to put pressure on elected officials."

In the interview, Youngkin, who is anti-abortion, said he believes abortion rights should be a state issue.

"Just like taxes, and funding education and funding law enforcement, like the budget we’re working for right now," the governor said. "This should be a state’s decision, and we’re going to have to wait until the Supreme Court ruling is final before we in fact can really define where we’re going to go."

Much can change before the court publishes its final decision. As draft opinions are circulated among justices, votes can and have changed on controversial cases, Politico reported.

Citing a person familiar with the court’s deliberations, Politico reported four other Republican-appointed justices voted with Alito: Clarence Thomas and three Trump-appointed justices, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

VA Democrats Pledge To Fight For Abortion Rights

Sen. Mark Warner (D-VA) said he was "outraged" by the Supreme Court's reported plans to overturn Roe V Wade.

“I believe abortion care is health care, and I’ll keep fighting for that in the Senate,” he said in a tweet.

Sen. Tim Kaine (D), the junior senator from Virginia, said the draft opinion shows why the Senate, when controlled by the Republicans, refused to vote on former President Barack Obama’s nomination of Merrick Garland in 2016 but rushed the confirmation of Supreme Court nominee Amy Coney Barrett in late 2020 at the end of former President Donald Trump’s presidency.

“2 stolen seats = Taking away women’s rights. It’s been the goal all along,” Kaine said in a tweet.

Kaine also urged Congress to pass the Women’s Health Protection Act as soon as possible to codify the protections in Roe V. Wade. This is unlikely to happen because it would require the elimination of the filibuster in the Senate in order to pass, a move that some Senate Democrats oppose.

In response to the leaked draft of the opinion, Rep. Don Beyer (D), who represents Virginia’s eighth congressional district, said if the U.S. Supreme Court “does issue this decision as a 5-4 ruling, the deciding vote will come from the seat Republicans stole in 2016.”

Rep. Gerry Connolly (D), who represents Virginia’s 11th congressional district, noted the House of Representatives has already voted to codify Roe V. Wade in the Women’s Health Protection Act. He called on the Senate to vote to approve the bill.

But the Senate does not likely have enough votes to overcome a Republican filibuster of the bill.

In Virginia’s General Assembly, Sen. Louise Lucas (D-Portsmouth) said Monday night in response to the leaked draft that she will work to make sure abortion remains legal in Virginia.

“My name is L. Louise Lucas, I am the President Pro Tempore of the Virginia Senate and Chairwoman of the committee that deals with abortion rights. I have one message tonight. When Glenn Youngkin comes to take away our abortion rights, he is going to run into a BRICK WALL,” Lucas wrote in a tweet.

Sen. Jennifer McClellan (D-Richmond) said Tuesday that the leaked draft ruling makes it clear that states are the new battleground for reproductive rights.

"I passed the Reproductive Health Protection Act in 2020, removing medically unnecessary barriers to abortion and making Virginia the first southern state to expand access," McClellan said in a statement. "Because of the Reproductive Health Protection Act, Virginia is now a national leader in protecting abortion access — and we will never turn back."

Polls Show Americans Favor Abortion Rights

According to a 2021 Gallup poll, 58 percent of Americans oppose overturning Roe V. Wade, while 32 percent of Americans support overturning it.

Abortion rights advocacy and other groups were also quick to react after Politico published its report.

“Let's be clear: This is a draft opinion. It’s outrageous, it’s unprecedented, but it is not final,” Planned Parenthood tweeted. “Abortion is your right — and it is STILL LEGAL.”

The American Civil Liberties Union said overturning Roe “would deprive half the nation of a fundamental, constitutional right that has been enjoyed by millions, for over 50 years.”

“The breach in protocol at the Court pales in comparison to the breach in constitutional freedoms that the Court is charged with upholding,” the ACLU said.

The National Right to Life organization said it would “let the Supreme Court speak for itself” and would wait for its decision before commenting.

The Supreme Court heard oral argument late last year on a Mississippi case challenging Roe. The case, Dobbs v. Jackson Women's Health Association, challenges a Mississippi law that bans abortions in most cases after 15 weeks of pregnancy.

The law undercuts the standard set by Roe that guarantees women access to the procedure up until the fetus is viable outside her womb, typically around 23 or 24 weeks after conception, and longer in cases where the woman's life or health is in jeopardy.

Mississippi’s lawyers argued that striking down Roe, and the Planned Parenthood v. Casey case that affirmed it, is the only means available to enforce the ban.

In Roe, the Supreme Court said an unwanted pregnancy could lead a woman to "a distressful life and future." In the 1992 case, Casey v. Planned Parenthood, the court upheld Roe, finding that abortion rights were necessary for "women to participate equally in the economic and social life of the nation."

Lawyers for the state of Mississippi proposed an array of mechanisms to uphold the 15-week abortion ban but said the court ultimately should overturn the "egregiously wrong" Roe and Casey rulings.

If the court "does not impose a substantial obstacle to 'a significant number of women' seeking abortions," the state argued in December, the justices should reinterpret the "undue burden" standard established in Roe and give the state the authority to "prohibit elective abortions before viability" of the fetus.

The Center for Reproductive Rights, which challenged the law with the Jackson Women's Health Organization, argued that although the Constitution does not address pregnancy, courts have upheld the decision in Roe, which was tied to privacy and personal autonomy.

"Every version of the State's argument amounts to the same thing: a request that the Court scuttle a half-century of precedent and invite states to ban abortion entirely," the plaintiffs' brief states.

In oral arguments, Center for Reproductive Rights Senior Director Julie Rikelman said the state's ban on abortion two months before a fetus is viable outside the womb is "flatly unconstitutional under decades of precedent."

"Two generations have now relied on this right, and 1 out of every 4 women makes a decision to end a pregnancy," Rikelman said.

The plaintiffs also argued that denying women access to abortion is detrimental to their physical and emotional health.

Though the leaking of the draft opinion is unprecedented and a blow to an institution that holds the secrecy of its deliberations sacrosanct, the Supreme Court’s shift on abortion rights isn’t unexpected. The 6-3 conservative majority on the court previously signaled that it may be willing to impose new restrictions on abortion.

According to the Politico report, the three Democratic-appointed judges — Stephen Breyer, Sonia Sotomayor and Elena Kagan — are writing dissent opinions. It’s unclear how Chief Justice John Roberts will vote or if he will write an opinion of his own.