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The controversy around Virginia’s new abortion bill, explained

Confusing comments by Virginia Gov. Ralph Northam have fed a firestorm around the new bill.

Gov. Ralph Northam of Virginia
Gov. Ralph Northam of Virginia.
Win McNamee/Getty Images

A bill to remove abortion restrictions in Virginia was always going to be controversial. But a contentious committee hearing, and some confusing comments by Virginia Gov. Ralph Northam, have turned debate over the bill into a nationwide furor.

Virginia House Bill 2491 would roll back a number of requirements, including a 24-hour waiting period and a mandate that second-trimester abortions take place in a hospital. Always something of a long shot in the Republican-controlled state legislature, the bill may now be doomed by the national firestorm surrounding it.

The controversy has centered on a provision concerning third-trimester abortions. Under current Virginia law, in order for a patient to terminate a pregnancy in the third trimester, three doctors must certify that continuing the pregnancy would likely cause the patient’s death or “substantially and irremediably impair” her mental or physical health. The new bill would reduce the number of doctors to one, and remove the “substantially and irremediably” qualifier — abortions would be allowed in cases where a mother’s mental or physical health is threatened, even if the damage might not be irreversible.

The bill began inspiring outcry among abortion opponents nationwide after its sponsor, Virginia Delegate Kathy Tran, said in a committee hearing on Monday that it would technically allow abortion until the point of birth, if a doctor agreed it was necessary.

Gov. Northam, a Democrat, was asked about the bill in a radio interview on Wednesday, and his response only added to the controversy. Appearing to discuss what would happen if a child was born after a failed attempt at abortion, he said, “the infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”

Some took Northam’s comments as an endorsement of infanticide. “In just a few years pro-abortion zealots went from ‘safe, legal, and rare’ to ‘keep the newborns comfortable while the doctor debates infanticide,” said Sen. Ben Sasse (R-NE) in a statement on Wednesday.

A spokesperson for Gov. Northam told Vox his comments were “absolutely not” a reference to infanticide, and that they “focused on the tragic and extremely rare case in which a woman with a nonviable pregnancy or severe fetal abnormalities went into labor.”

But Northam’s words helped stir up a nationwide debate around one of several recent efforts to expand abortion access at the state level. Laws restricting abortion access are nothing new, having proliferated nationwide since 2010.

But now, buoyed by Democratic victories in the 2018 midterms and anxious to shore up access in anticipation of a challenge to Roe v. Wade, abortion rights supporters in state legislatures are backing bills that would roll back some of the earlier restrictions or introduce new protections for abortion rights. And while the particulars of the controversy in Virginia are unique, versions of it are likely to take place across the country as abortion-rights supporters back legislation in purple and even red states.

The controversy centers on the Virginia bill’s provisions for third-trimester abortions

Kathy Tran, a Democrat, was elected to the Virginia House of Delegates in 2017, one of a record 28 women chosen for the legislative chamber that year. She introduced HB 2491 earlier this year, and in a committee hearing on Monday, she was questioned about the bill by fellow delegate Todd Gilbert, a Republican.

“How late in the third trimester could a physician perform an abortion if he indicated it would impair the mental health of the woman?” Gilbert asked.

“Through the third trimester,” Tran responded. “The third trimester goes all the way up to 40 weeks.”

“Where it’s obvious that a woman is about to give birth,” Gilbert then asked, “would that still be a point at which she could request an abortion if she was so certified? She’s dilating.”

“My bill would allow that,” Tran said.

HB 2491 would not actually change the time limit for receiving an abortion in Virginia, Elizabeth Nash, senior state issues manager for the Guttmacher Institute, told Vox. It would change the number of physicians required for approval, and broaden the health circumstances under which an abortion would be allowed.

Situations in which a woman seeks an abortion when she is ready to give birth are incredibly uncommon, Nash said. Ninety-two percent of all abortions in America happen in the first trimester, according to Planned Parenthood. Only 1.4 percent of abortions happen at 21 weeks’ gestation or beyond, according to the organization — the third trimester begins at around 28 weeks.

Nonetheless, footage of Tran’s comments soon spread in conservative circles. “This literally makes me sick to my stomach,” former United Nations Ambassador Nikki Haley tweeted on Tuesday.

The National Review ran footage of the comments under the headline, “Virginia Bill Would Legalize Abortion Up To Birth.”

“We need to trust women to make their own healthcare decisions,” Tran said in a statement to Virginia’s WSET on Wednesday. “I regret that these partisan games have taken the focus away from where it should be: on the Virginian women who have asked for this bill to get politicians out of their private medical decisions.”

On Thursday, Tran told the Washington Post that she “misspoke” in her response to Gilbert’s question during the hearing: “I should have said: ‘Clearly, no, because infanticide is not allowed in Virginia, and what would have happened in that moment would be a live birth.’ ”

Tran also said she has been receiving death threats since footage of the hearing spread. She has not responded to Vox’s request for comment.

Meanwhile, in a Wednesday interview on Virginia radio station WTOP, reporter Julie Carey asked Northam to respond to Tran’s comments.

“Do you support her measure?” Carey asked. “Explain her answer.”

“This is why decisions such as this should be made by providers, physicians, and the mothers and fathers that are involved,” Northam said. “When we talk about third-trimester abortions,” he added, “it’s done in cases where there may be severe deformities. There may be a fetus that’s non-viable.”

“If a mother is in labor, I can tell you exactly what would happen,” the governor went on. “The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”

Northam’s comments quickly sparked outrage, with some interpreting them as an endorsement of infanticide.

“The inhumanity on display here is hard to fathom,” tweeted Seth Mandel, executive editor of the conservative Washington Examiner. “The baby would be delivered and kept comfortable while its parents debated whether or not to execute it.”

Daily Wire editor-in-chief Ben Shapiro responded to Northam’s comments with a tweet that mentioned “murdering babies outside the womb.”

In an interview with the Daily Caller, President Trump said he was surprised to hear about Northam’s comments. He said he had watched video of Tran’s remarks, calling them “terrible.”

“Do you remember when I said Hillary Clinton was willing to rip the baby out of the womb?” Trump asked. “That’s what it is, that’s what they’re doing, it’s terrible.”

Northam’s communications director Ofirah Yheskel attempted to clarify the governor’s comments in a statement to media outlets on Wednesday.

“No woman seeks a third trimester abortion except in the case of tragic or difficult circumstances, such as a nonviable pregnancy or in the event of severe fetal abnormalities, and the governor’s comments were limited to the actions physicians would take in the event that a woman in those circumstances went into labor,” Yheskel said. “Attempts to extrapolate these comments otherwise is in bad faith and underscores exactly why the governor believes physicians and women, not legislators, should make these difficult and deeply personal medical decisions.”

A spokesperson for the governor told Vox that the governor had “absolutely not” been referring to the euthanasia of infants born after a failed abortion. “The governor’s comments focused on the tragic and extremely rare case in which a woman with a nonviable pregnancy or severe fetal abnormalities went into labor,” the spokesperson said.

It’s still not entirely clear what Northam was trying to say about HB 2491. The interview was confusing in other ways beyond his comments about infants being born. Northam also said he supported having “at least two providers” involved in the decision of whether to perform a third-trimester abortion, although the current law requires three and HB 2491 would require one.

Some have raised the possibility that Northam was not fully familiar with the bill at issue. Whatever the case, his comments added fuel to the fire already blazing around the bill.

Debates like this could become more common with Kavanaugh on the Supreme Court

Northam’s comments added to concern that abortion opponents already felt over HB 2491’s broadening of the circumstances under which someone could seek a third-trimester abortion.

“It seemed like he was really raising the possibility of making a deliberate decision to let an infant, even who had been resuscitated, die because of considerations like the mental health of the mother,” Matthew Lee Anderson, the founder of Christian politics and culture website Mere Orthodoxy, told Vox of the governor’s remarks.

For many abortion opponents, Anderson said, the possibility of allowing third-trimester abortions due to mental health concerns was troubling. A doctor could argue, for instance, that having a child with Down syndrome would negatively impact a mother’s mental health, he said.

It’s not necessarily reassuring that it’s extremely uncommon for a patient to seek abortion when about to give birth, according to Anderson. “Wildly implausible scenarios become plausible through moments like this,” he said. “We talk about these rare instances and the possibility of them in order to bring up deeper concerns about the principles at work in our decision-making, and we make laws not just to handle general categories of people but to address what happens on the margins as well.”

Meanwhile, some say that bringing up the idea of someone seeking an abortion while in labor, as Gilbert did, was a way of hijacking debate on the bill. “The idea of raising that means that you’re trying just to derail this bill,” the Guttmacher Institute’s Nash said.

The Virginia bill comes as some other states are passing laws to roll back abortion restrictions or otherwise expand access. New York’s recently passed Reproductive Health Act, for instance, allows abortions after 24 weeks if the fetus is not viable or if there is a threat to the mother’s health. Under previous law, which allowed an abortion at that point only if a mother’s life was in danger, reproductive rights advocates say women were forced to travel long distances and pay thousands of dollars in order to get an abortion, sometimes when they were very ill.

The New York Civil Liberties Union, for instance, highlighted the case of Sophia, a woman who became pregnant during treatment for several types of cancer. Doctors said the fetus was unlikely to survive, but because Sophia was past the 24-week limit, she had to travel 2,000 miles for the procedure, a trip made risky because of her illness.

Meanwhile, opponents of the New York law have raised concerns similar to Anderson’s, worrying that the health provision in the new law may include mental health issues. “When you use the term ‘health of the woman,’ that’s very elastic,” Bill Donohue, president of the Catholic League, told CBS New York. “That has been defined as mental health, she’s depressed, she doesn’t feel good that day.”

The controversy over the Virginia bill may have ended its already-slim chances for passage — for now, it has been tabled by the House of Delegates. But such controversies will surely arise again as reproductive rights advocates seek to shore up abortion protections where they can — and abortion opponents seek to pass new restrictions — in anticipation that the Supreme Court, with the addition of Justice Brett Kavanaugh, may vote to overturn Roe v. Wade.

If the landmark abortion decision is overturned or substantially weakened, states will be able to enforce abortion restrictions that would have been blocked by courts in the past, including bans on abortion before fetal viability.

“The change in the Supreme Court has just sent this huge wave across state legislatures,” Nash said. “Conservative legislators are looking to ban abortion because they’re seeing an opportunity, and progressive legislators are looking to protect abortion rights because they’re fearful of what could happen at the Supreme Court.”

Abortion restrictions at the state level are nothing new: hundreds have been passed since 2010, when Republicans took over many statehouses. And to some degree, abortion rights advocates have been playing defense, protesting those bills when they come up and challenging them in the courts.

But bills like those in Virginia and New York that seek to expand access have been slowly growing more common since 2014, Nash said. As they become more common, a new picture will emerge in the abortion debate: one of abortion rights supporters attempting to gain ground and opponents pushing back. The controversy over the Virginia bill — fed though it may have been by confusing comments by Gov. Northam — is likely only the beginning.

Correction: An earlier version of this story misstated the publication at which Ben Shapiro is editor-in-chief. It is the Daily Wire.

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