This time last year, Virginia was at the center of a nationwide firestorm.
The state legislature was considering a bill that would remove some restrictions on third-trimester abortions, and in an interview about the bill, Democratic Gov. Ralph Northam made confusing comments that some took as an endorsement of infanticide.
The moment went viral, with Fox News commentators and Republican politicians lambasting the governor and the bill. In his State of the Union address in February, President Trump mentioned “the case of the governor of Virginia where he basically stated he would execute a baby after birth.” The bill never got a vote.
But now, both houses of Virginia’s state legislature have passed another bill to remove restrictions on abortion. The bill would eliminate a required ultrasound and 24-hour waiting period before the procedure can be performed, as well as requirements for clinics that, advocates say, are simply aimed at shutting down the facilities.
The legislation “removes the most onerous and medically unnecessary restrictions on a woman exercising her right to choose,” Virginia state Sen. Jennifer McClellan, who sponsored the Senate version of the bill, told Vox. “A lot of these restrictions were put in place to close clinics, to limit who could perform abortions, and that particularly hit lower-income, rural women, and women of color the hardest.”
The bill she sponsored isn’t the same as the one proposed in 2019, and the restrictions on later abortions will remain in place. Still, as states around the country pass abortion restrictions and the Supreme Court gets ready to reconsider Roe v. Wade, Virginia in 2020 is something unusual: a place where conservatives went after abortion rights supporters — and lost.
Abortion rights advocates say that could be a blueprint for the rest of the country.
The lesson is “be persistent,” McClellan said. “The public is with us.”
An abortion rights bill in Virginia failed last year amid nationwide controversy
Virginia Del. Kathy Tran, one of a record 28 women elected to the state’s House of Delegates in 2017, introduced a bill to reduce abortion restrictions in January 2019. The bill removed the ultrasound and 24-hour waiting period requirement, as well as a requirement that abortion clinics meet the same standards as hospitals. It also loosened several restrictions on third-trimester abortions, including a requirement that three doctors certify that continuing the pregnancy would likely cause the patient’s death or “substantially and irremediably impair” their mental or physical health (the bill reduced the number of doctors to one and eliminated the “substantially and irremediably impair” language).
Republicans in the state legislature focused on the provisions around third-trimester abortions, with one delegate asking if the bill would allow an abortion at the point “where it’s obvious that a woman is about to give birth.”
Tran replied that the bill would allow that.
Doctors say that in practice, patients do not request an abortion when they are “about to give birth,” and doctors do not provide it. And third-trimester procedures are a small fraction of all abortions. However, abortion opponents have long claimed that abortion rights supporters want to allow the procedure until the moment of delivery or even during labor, and to some, Tran’s response appeared to substantiate those claims.
Gov. Northam stirred up even more controversy when he was asked about the bill in an interview.
“If a mother is in labor, I can tell you exactly what would happen,” he said. “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.”
To many abortion opponents, it sounded like Northam was talking about euthanizing an infant that had already been born. A spokesperson later clarified that “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,” but his meaning remained somewhat unclear. The interview was just the beginning of a chain of scandals for Virginia Democrats, including the revelation that Northam had appeared in a 1984 medical school yearbook photo in which one man is wearing blackface and the other is wearing a Ku Klux Klan robe.
Northam’s comments on abortion got enormous attention on Fox News and from Trump, who mentioned them in speeches throughout 2019 and into this year, claiming at January’s March for Life that Northam “stated that he would execute a baby after birth.” For a lot of abortion opponents, Virginia became synonymous with “extremism” on abortion rights.
Tran, for her part, received death threats. And the bill was tabled in the House of Delegates, leaving Virginia’s restrictions on abortion in place.
Democrats didn’t run away from the abortion issue
For abortion rights advocates in Virginia, however, the fight wasn’t over. In fact, it had started years before.
McClellan was in the House of Delegates when the ultrasound and waiting period requirement passed in 2012. At the time, she was the first member of the House of Delegates to be pregnant during a session, and she talked to her doctor about how the bill would affect patients. She heard about a patient with a hole in her heart whose pregnancy could have killed her, another who was diagnosed with cancer while pregnant, and a third who found out that if she carried her pregnancy to term and gave birth, her child would suffocate as soon as the umbilical cord was cut.
When the bill was debated, McClellan told these stories on the House floor. “This is what this ultrasound bill is going to do,” she says she told Republican supporters of the restriction: “All of these women, you are going to make them, after they’ve gotten the worst news of their life, after they’ve made the most difficult decision of their life, you are going to make them have another ultrasound, wait 24 hours, be asked if they want to see the ultrasound, be asked if they want to listen to a heartbeat.”
Nevertheless, the bill passed. And when Del. Tran introduced her bill — McClellan was the sponsor of the Senate version — it fell victim to “misinformation” by Republicans, McClellan said. The takeaway for Democrats was, “If these things keep dying on a party-line vote, then we just need to take back the majority.”
To do that, Democrats didn’t shy away from the issue of abortion — in fact, they campaigned on it.
Virginians today broadly support abortion rights and oppose some of the restrictions that Democrats have been working to repeal, reproductive rights advocates say. Amid debate around Tran’s bill in February 2019, a Washington Post-Schar School poll found that 60 percent of adults in the state thought abortion should be legal in the third trimester if the pregnant person’s health is at risk. And in a poll conducted this January by Public Policy Polling and commissioned by the Virginia Pro-Choice Coalition, 79 percent of Virginians said that abortion should be legal, and 59 percent said that patients should not be required to undergo an ultrasound before the procedure unless medically necessary.
When reproductive rights groups did candidate outreach ahead of the 2019 election, they urged candidates to pay attention to such numbers. The National Institute for Reproductive Health Action Fund, for example, partnered with NARAL Pro-Choice Virginia to hold candidate trainings around the issue of abortion.
“The training was really about, ‘This is who you are and this is who your voters want,’” Andrea Miller, president of the National Institute for Reproductive Health (NIRH), told Vox, “and how to make sure that when the attacks come, and we anticipated they would, that we could continue to stay true to those values.”
The attacks did come. Tran was the subject of negative ads around her support of abortion rights, and Dels. Jennifer Carroll Foy, Kelly Fowler, and Elizabeth Guzmán were challenged on the issue by Republicans as well, Miller said.
Meanwhile, some anti-abortion groups argue that Virginia Democrats don’t actually have public opinion on their side. For example, Olivia Gans Turner, president of the Virginia Society for Human Life, points to nationwide Gallup polling showing that while about half of Americans say abortion should be legal under certain circumstances, only about 25 percent say it should be legal under any circumstances. That half who say it should be legal sometimes would be “shocked and horrified” to be lumped together with those who say it should always be legal, Turner told Vox.
Nonetheless, the messaging that “abortion rights and abortion access are values that the majority of Virginians believe in,” as Miller put it, seemed to work — Dels. Tran, Foy, Fowler, and Guzmán all won their races in 2019. And Democrats picked up eight additional seats to take control of both the House of Delegates and the state Senate for the first time in 20 years. All the candidates who flipped seats had been trained by NIRH and NARAL, Miller said.
“Rolling back these restrictions was a rallying cry in the 2019 elections, and a majority of Virginians support a woman’s right to choose,” McClellan said.
In 2020, Virginia passed a sweeping bill to repeal abortion restrictions
The Democratic wins in 2019 meant legislators could advance a number of progressive priorities in 2020, including a measure to ratify the Equal Rights Amendment, which passed earlier this month.
And on January 7, McClellan prefiled the Reproductive Health Protection Act in the Senate. Del. Charniele Herring, the first woman and the first person of color to become the majority leader of the House of Delegates, introduced the bill in the House.
The bill repeals a number of restrictions on abortion, most of them introduced by Republican legislators in the past 10 years. In addition to the ultrasound and waiting period requirements, it also gets rid of the requirement that doctors offer patients certain printed materials about abortion.
Abortion opponents argue that these materials, which include information about stages of fetal development, are necessary to make sure that patients are fully informed. But abortion rights advocates have long said that they are biased and intended to convince patients not to have abortions.
“What was in the code was not medically necessary,” but doctors will still offer patients whatever counseling is appropriate to their particular situation, Herring said.
The bill also removes a provision requiring that abortion clinics meet the same medical standards as hospitals, a restriction that abortion rights advocates say has no medical basis and is aimed at shutting clinics down.
While doctors may perform an ultrasound as part of medical care, requiring one 24 hours before an abortion simply made the procedure more difficult for patients, who were often required to make multiple long trips to a facility, Tarina Keene, executive director of NARAL Pro-Choice Virginia, told Vox. The bill will alleviate that burden, as well as make it easier for abortion providers to operate in the state, she said.
One thing the bill does not do is repeal restrictions on third-trimester abortions. That was a conscious decision to focus on where legislators could have the biggest impact, McClellan said, since the vast majority of abortions happen in the first and second trimesters.
The bill passed the House of Delegates on Tuesday and the Senate on Wednesday. Each chamber will still have to pass the other’s version, a process that happens in February. Assuming the bill advances to Northam’s desk, he is expected to sign it.
For advocates on both sides of the abortion issue, the bill’s passage is a lesson. The Virginia Society for Human Life is pushing to elect anti-abortion candidates at the federal and state levels in 2020 and 2021, when Virginia will elect a new governor. “Elections have consequences,” Turner said, “Can’t say it often enough.”
Herring, meanwhile, pointed to the influence of the record number of women in the Virginia legislature. “Having more women here has allowed us to make sure that policy is evidence-based,” she said.
And for McClellan, the bill’s passage is a testament to the power of storytelling, whether in Virginia or elsewhere. “Firsthand stories are really way more powerful than data and logic,” she said. “Tell your story. Make sure your stories are heard.”