The current status of abortion in Virginia

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On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health. (See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).)

This opinion held that abortion is not a protected right under the federal constitution, leaving the regulation of abortion to the states. Since then, some states have sought to restrict access to abortion while others have sought to protect, or even expand, access to abortion. Unlike many of its surrounding states, Virginia has not changed its abortion laws since the Supreme Court’s opinion in Dobbs.

However, following the Dobbs decision, Gov. Glenn Youngkin issued a press release stating that he was working with Virginia delegates to introduce new abortion legislation during the 2023 legislative session. (See, Governor of VA., Governor Glenn Youngkin statement on Supreme Court’s Dobbs ruling announcement (June 24, 2022).)

A number of bills seeking to restrict access to abortion in the commonwealth were subsequently proposed during the 2023 legislative session, none of which passed, including the following:

• H.B. 1395: Would have repealed all provisions of the Code of Virginia allowing for the performance of abortions.
• H.B. 1795: Would have required every health care provider licensed by the Board of Medicine who attempted to terminate a pregnancy to “(i) exercise the same degree of professional skill, care, and diligence to preserve the life and health of the human infant who has been born alive as a reasonably diligent and conscientious health care practitioner would render to any other child born alive at the same gestational age and (ii) take all reasonable steps to ensure the immediate transfer of the human infant who has been born alive to a hospital for further medical care.”
• H.B. 2270: Would have required “informed written consent,” as defined in the bill, before a person could undergo an abortion.
• H.B. 2278 / S.B. 1385: Would have only allowed a physician licensed by the Board of Medicine to perform an abortion if the physician determined using best clinical judgment that the gestational age of the unborn child was not more than 15 weeks, unless (i) the physician determined, based upon best clinical judgment, that the continuation of the pregnancy would result in the death of the pregnant person or substantially and irreversibly impair one or more of such person’s major bodily functions, not including psychological or emotional conditions, or (ii) the pregnancy was the result of rape or incest.
• S.B. 1284: Would have prohibited abortion except when (i) a physician determined that a medical emergency, defined as when an abortion is necessary to save the life of the mother, existed or (ii) the probable gestational age of the unborn child was 20 weeks or less and the pregnancy was the result of rape or incest in which an official police report had been filed alleging the offense of rape or incest. Such abortions would have been required to be performed by a licensed physician in a hospital.
• S.B. 1483: Would have abolished lawful abortion after “viability” (defined to mean that the gestational age of the unborn child was (i) 24 weeks or more or (ii) in the estimation of the physician and two consulting physicians, at least 22 weeks), except to save the life of the pregnant person, as well as have required that “[r]egardless of the duration of the pregnancy, when a child has been completely delivered, measures for life support for such child shall be available and utilized if there is any clearly visible evidence of viability.”

Currently, abortions may be performed by either a physician or an advanced practice registered nurse during the first trimester of pregnancy. (VA. CODE ANN. § 18.2-72.) During the second trimester, a licensed physician may perform an abortion “in a hospital licensed by the State Department of Health or operated by the Department of Behavioral Health and Developmental Services.” (Id. § 18.2-73.)

After the second trimester of pregnancy, abortion is legal if performed by a licensed physician and the following conditions are met: (1) The operation is performed in a hospital licensed by the Virginia State Department of Health or operated by the Department of Behavioral Health and Developmental Services; (2) The physician and two consulting physicians certify and enter in the hospital record of the pregnant person, that in their medical opinion, based upon their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the pregnant person or substantially and irremediably impair the mental or physical health of the person; and (3) Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability. (Id. § 18.2-74.)

If, however, in the opinion of the physician an abortion is necessary to save the life of the pregnant person, then these third trimester requirements do not apply. (Id. § 18.2-74.1.)

Before performing an abortion, a physician or advanced practice registered nurse authorized to perform first trimester abortions must obtain the written consent of the pregnant person. If the pregnant person has been adjudicated incompetent by a court or if the physician or advanced practice registered nurse knows or has good reason to believe that the pregnant person is incapacitated, then the physician or advanced practice registered nurse must obtain written permission from a parent, guardian, committee, or other person standing in loco parentis to the pregnant person before performing an abortion. (Id. § 18.2-76.)

Whether these Virginia abortion laws will remain unchanged after the next legislative session remains to be seen. Gov. Youngkin has indicated that he intends to again seek a 15-week ban during the 2024 legislative session. (See Gary Grumbach, “Virginia Gov. Youngkin Eyes a 15-week Abortion Ban as a ‘Consensus’ Voters Would Back,” NBC NEWS (Aug. 27, 2023).)

In sum, Virginia physicians and advance practice registered nurses who perform abortions should continue to comply with Virginia’s current abortion laws. This includes documenting the following when performing an abortion after the second trimester: (1) certification in the hospital record by the physician and two consulting physicians that in their medical opinion, based upon their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the pregnant person or substantially and irremediably impair the mental or physical health of the person; and (2) documentation that measures for life support for the product of such abortion or miscarriage were available and utilized if there was any clearly visible evidence of viability.

Physicians should also remain aware of the potential for drastic changes to Virginia’s abortion laws, such as a 15-week abortion ban, and be prepared to comply with such changes.

Caitlin Parry is an associate in Hancock Daniel’s corporate group in the firm’s Richmond office. She earned her law degree magna cum laude from William & Mary Law School and is admitted to practice in Virginia and the District of Columbia.