Bolling: Dobbs v Jackson Women’s Health Organization – What Does It Mean In Virginia?

Several people have reached out to me in the past 24 hours asking what impact the U.S. Supreme Court’s decision to reverse Roe v Wade will have on Virginia. I will try and address some of those questions here.

First, let’s understand what the Supreme Court actually decided.

In 1973, the Supreme Court ruled that there was an implied right of privacy in the U.S. Constitution, and that the right to have an abortion, under certain circumstances, was guaranteed as a part of that right of privacy. In Roe v Wade, and subsequent cases such as Planned Parenthood v Casey, the court created certain rules governing abortions.

For example, the court divided pregnancy into three trimesters, and declared that the choice to end a pregnancy in the first trimester was solely up to the woman. In the second trimester, the state could regulate abortion, although not ban it. In the third trimester, the state could prohibit abortion to protect a fetus that could survive on its own outside the womb. This is admittedly an oversimplification of Roe, but it represents the gist of the decision.

In yesterday’s ruling in Dobbs v Jackson Women’s Health Organization, the justices reversed the prior decision in Roe, finding that there is no guaranteed right to have an abortion in the U.S. Constitution. Since this was the foundation upon which Roe was based, it served to overturn that decision and return the power to regulate abortion to the state’s as they see fit. In the words of Justice Samuel Alito: “The Constitution does not confer a right to abortion … the authority to regulate abortion is returned to the people and their elected representatives.”

So, as far as the impact on the various states is concerned, it really depends on what underlying abortion laws the states have in place, or what laws they now choose to put in place. The bottom line is that it will remain relatively easy to access an abortion in some states, while it may be very hard in other states. This is exactly the way things were prior to the Roe decision in 1973.

In Virginia, we have a current state law in place that allows a woman to obtain an abortion as long as the abortion is performed prior to the end of the second trimester of pregnancy. Abortions can also be performed during the third trimester of pregnancy if they are deemed necessary to prevent the death of the mother, or if it is determined that continuation of the pregnancy is likely to result in substantial and irremediable impairment to the mental or physical health of the mother.

That law will remain in place. In other words, Virginia will see little change in our current abortion laws as a result of the most recent Supreme Court decision. In order for Virginia’s abortion laws to change, the General Assembly would have to vote to change the current law and adopt a more restrictive law.

Thus, this will now become a highly charged political issue in Virginia. Republicans will no doubt introduce legislation during the 2023 legislative session to enact more abortion restrictions. These proposals will certainly pass the Republican controlled House of Delegates. The only suspense is in seeing what happens to these proposals in the Senate of Virginia, which is currently controlled by Democrats. However, the Democratic majority in the Senate is only 21-19, so it would only take one Democratic Senator to tip the balance of power to the GOP.

Bottom line, expect no immediate changes to Virginia’s abortion laws as a result of the Dobbs decision. However, expect much discussion of this issue as we head into the 2023 legislative session. Also, expect the abortion issue to be front and center in key congressional campaigns this November, which could impact the balance of power in the U.S. Senate and the House of Representatives.

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