Reproductive rights are at risk in the 2023 Virginia legislative elections

In 2020, the Democratic-led Virginia General Assembly and Democratic Gov. Ralph Northam worked together to enact the Reproductive Health Protection Act, a law aimed at eliminating state interference in abortion care decisions. But even with polls showing the state’s voters strongly oppose efforts to ban or restrict abortion care, this November’s state legislative elections could determine whether reproductive freedom will continue to be protected or face elimination.

Virginia, one of five states that holds legislative elections in odd-numbered years, has long been a battleground for reproductive rights.

In 2011, Republican Gov. Bob McDonnell signed a law requiring that clinics that perform abortions adhere to the same hall and doorway size regulations as hospitals, a common tactic used by abortion rights opponents to force facilities to shut down. A year later, he signed a law requiring a medically unnecessary ultrasound be performed on the patient at least 24 hours prior to any abortion.

Breanna Diaz, policy and legislative counsel at the ACLU of Virginia, told the American Independent Foundation in an interview that the commonwealth had had laws referred to as targeted regulation of abortion providers. “For about 10 years, I believe, Virginia had in place TRAP laws … that made it substantially more burdensome for individuals to seek abortions in Virginia. … And as you can imagine, it made it really difficult for everyone seeking an abortion, but really the most marginalized folks seeking abortion care.”

Northam, who supported reproductive rights, was elected governor in November 2017. Two years later, Virginia Democrats won majorities in both the House of Delegates and the Senate, giving them a trifecta: total control of the state government for the first time since 1993.

The new Democratic majority acted quickly to expand reproductive choice.

“The House and Senate passed the Reproductive Health Protection Act in 2020, and that repealed all of these really onerous, medically unnecessary restrictions to abortion care,” Jamie Lockhart, executive director of Planned Parenthood Advocates of Virginia, told the American Independent Foundation. She noted that it also increased access by allowing nurse practitioners and certified nurse midwives to provide some abortion care.

The Democratic–led government also enacted bills allowing abortion coverage in health insurance plans and ensuring that access to birth control is protected and not treated as abortion under state law.

Each of these bills passed with Democrats in strong support and Republicans virtually all opposed.

“Sadly, these votes have been on largely partisan lines, when it comes to abortion rights and access,” Lockhart said:

I think there are some Republicans who maybe want to be with us more, but the threat of primaries has meant that they aren’t with us. I think there are also some Republicans in Virginia who know how unpopular their positions are. And so, while they won’t vote with us, they try to persuade their caucus not to take up anti-abortion legislation. And so I think that that stops some bills from actually getting debate and votes. But I anticipate that if they had the majorities … anti-abortion leaders would really push and force them to vote on some really extreme legislation. But it is really unfortunate when you know that the majority of Virginians support abortion rights, and that includes many, many Republicans, that the Republican caucus doesn’t reflect that at all.

In 2021, Republican Glenn Youngkin intentionally played down his anti-abortion views during his run for governor. “When I’m governor, and I have a majority in the House, we can start going on offense,” he told The Undercurrent’s Lauren Windsor. “But as a campaign topic, sadly, that in fact won’t win my independent votes that I have to get.”

That November, Youngkin defeated Democratic former Gov. Terry McAuliffe in the election 50.6%-48.6% as his party gained a narrow 52-48 majority in the House of Delegates.

With Youngkin’s encouragement, Republicans in the House then introduced several bills to roll back the Reproductive Health Protection Act and ban many abortions.

“Any bill that comes to my desk I will sign happily and gleefully in order to protect life,” he told the right-wing Family Foundation of Virginia in June 2022.

As Democrats still control a majority in the Senate — 22-18 since winning a January 2023 special election — none of the bills made it to his desk.

“The truth is, as long as Senate Democrats have our majority, the brick wall will stand strong and these extreme bills will never pass,” Democratic Senate President Pro Tempore L. Louise Lucas vowed in January.

Lockhart said that some of the anti-abortion bills were killed by the Senate in committee and some were quietly left in committee in the GOP-led House of Delegates “because the Speaker of the House, Todd Gilbert, knows how popular abortion access is and he didn’t even want his members to debate or vote on these bills, knowing that they were going to ultimately fail in the state Senate and not wanting them to be on the record for something so unpopular.”

The election in November, in which all 100 seats in the House of Delegates and all 40 Senate seats are up, will likely determine the future of abortion and contraception access in the commonwealth.

“If anti-abortion legislators are the majority in both chambers, we should expect to see a 15-week ban or an all-out ban move through the General Assembly,” Diaz warned.

Referencing a bill signed on April 13 by Republican Florida Gov. Ron DeSantis that bans abortions after six weeks, Lockhart predicted, “If we are in that position where there is an anti-abortion Republican trifecta, I think you would see legislation advance similar to what we just saw signed into law last night in Florida.”

Both Diaz and Lockhart noted that, should Democrats hold their Senate majority and retake the House, they would begin the process of putting an amendment before voters that would enshrine reproductive rights permanently in the Constitution. The process would require the House of Delegates and the Senate, in two consecutive Legislatures, with a House of Delegates election in between them, to vote in favor and then the majority of voters to adopt it.

“The constitutional amendment is a phenomenal vehicle to secure abortion rights in Virginia,” Diaz said, “because it only requires it to go through the Legislature and then goes directly to the ballot. So it won’t even go before the governor.”

A Washington Post-Schar School poll released April 6 found 34% of Virginia voters want to keep abortion laws as they are and 41% want to make them less strict. Just 17% want stricter rules. Even among Virginia Republicans, only 36% backed more strict abortion laws.

Liam Watson, press secretary for the Democratic Party of Virginia, said that reproductive rights are on the ballot this November: “We have a governor who has said he will sign a complete and total abortion ban here in the commonwealth. And we have legislators, Republican legislators, putting them forward. And were it not for our Senate Democrats’ brick wall, we would have a total abortion ban in the commonwealth today. And so that’s really what’s at stake this November.”

Published with permission of The American Independent Foundation.