Youngkin denounces Supreme Court leak as Roe casts uncertainty over abortion in Virginia

BY GRAHAM MOOMAW AND KATE MASTERS 

(VM) – Virginia Gov. Glenn Youngkin this week denounced the leak of a draft U.S. Supreme Court opinion overturning Roe v. Wade as an attempt to “cause chaos and to put pressure on justices and elected officials,” while reiterating his anti-abortion stance and his belief that abortion issues should be left to states to decide.

“This was a gross violation of our Supreme Court and does damage to our Supreme Court and our country,” Youngkin told reporters after an event in Richmond. “And I think that is something we should all recognize, the political games that are being played on this most important topic.”

Youngkin indicated he’ll take no further action on the matter until the court’s final decision is released.

“I’ll work with our legislature at that point,” he said.

The draft opinion published by POLITICO Monday night immediately pushed abortion to the forefront of national and state politics, with abortion-rights advocates noting the procedure, for now, will remain legal in Virginia while emphasizing the high stakes for women in a purple state that recently flipped to mostly Republican control.

Legislation in 2020 removed many of the state’s former restrictions on the procedure, eliminating mandatory ultrasounds and 24-hour waiting periods along with strict regulations on abortion clinics. Those rollbacks were largely achieved through a Democratic majority in both the House of Delegates and Senate and with support from then-Gov. Ralph Northam.

But with Republicans now in control of the House — and a pro-life governor — Democrats say they’ll be put on the defensive if abortion rights are ultimately overturned at the federal level.

 GOV. GLENN YOUNGKIN ATTENDED VIRGINIA’S FOURTH MARCH FOR LIFE, AN ANNUAL ANTI-ABORTION EVENT HELD OUTSIDE THE CAPITOL, ON APRIL 27, 2022. (KATE MASTERS/ VIRGINIA MERCURY)

“Abortion legislation in Virginia is probably at a stalemate,” said Del. Sally Hudson, D-Charlottesville, who sponsored a 2021 law removing the ban on abortion coverage for health plans offered on the state’s exchange. “But those rights are only as secure as the Democratic majority in the Senate.”

“That makes abortion the major issue on every future ballot in Virginia,” she added.

One of the first major steps Republican Attorney General Jason Miyares took after taking office in January was reversing Virginia’s legal position on the case before the Supreme Court, declaring that his office believes Roe should be overturned.

While campaigning last year, Youngkin told anti-abortion activists he’d “proudly advocate” for new abortion restrictions based on when a fetus can feel pain, which many conservatives argue begins around 20 weeks into a pregnancy. Under current state law, women have largely unrestricted access to abortion in the first and second trimesters. Abortion in the third trimester, which begins around the 28th week, are allowed only when three doctors decide continuing the pregnancy poses a severe threat to the mother. 

Virginia Democrats stoked a furor in 2019 when they proposed an unsuccessful bill to loosen the state’s restrictions on late-term abortions, but they didn’t pursue the proposal further after taking majority control in 2020.

The case before Supreme Court arose from a Mississippi law that prohibits most abortions after the 15th week.

If the 1973 Roe v. Wade precedent is indeed overturned, the ruling wouldn’t ban abortion nationwide. But it would give states greater legal authority to severely restrict or ban abortion, potentially leading to a future where abortion is largely outlawed in red states and readily accessible in blue states.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote in the draft opinion, adding “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”

The Family Foundation, one of Virginia’s most prominent anti-abortion groups, said it was “cautiously optimistic” about the draft opinion.

“If this is in fact the final vote of the justices, it is an incredible ruling,” Family Foundation President Victoria Cobb said in a news release. “Roe v. Wade had no constitutional basis and was wrongly decided, and this is our chance to undo bad precedent that has permitted the destruction of life for decades.”

Since gaining power last year, Virginia Republicans have seemed uneager to fully press the abortion issue.

Republican lawmakers introduced legislation this year to ban most abortions after 20 weeks. But the GOP-led House of Delegates never took it up, a move that helped politically vulnerable Republicans avoid a likely futile vote on a hot-button issue. A similar bill filed in the Senate failed in a party-line committee vote.

SEN. JOE MORRISSEY, D-RICHMOND. (PHOTO BY NED OLIVER/VIRGINIA MERCURY)

There’s more uncertainty surrounding abortion votes by the full Senate due to Sen. Joe Morrissey, a Richmond Democrat who has said he would support a 20-week abortion ban. Democrats currently have a 21-19 majority in the Senate, where Republican Lt. Gov. Winsome Earle-Sears breaks ties.

The Senate is currently the main check on Youngkin’s agenda, but Republicans have a chance to take full control of state government by flipping the chamber in 2023.

In an interview Tuesday, former Democratic Del. Lashrecse Aird, who is set to face off against Morrissey in a Senate primary next year, said abortion policy in Virginia “rests with him solely and allowing him to remain in the Senate.”

“That is the only vote that is required to undo the progress that has been made,” Aird said.

In an interview, Morrissey said the draft opinion was “very troublesome for a lot of different reasons” and that he had never seen an equivalent example of the court undoing such a longstanding precedent.

“It just doesn’t happen. I, for one, am surprised,” Morrissey said. “I thought that Roe vs. Wade would be tweaked.”

Asked for his reaction to Aird’s post, Morrissey said: “Who again is Lashrecse Aird?”

When told about Morrissey’s comment, Aird laughed.

“I hope that’s the approach he continues to take throughout this race,” she said. “I love it.”

DEL. LASHRECSE AIRD, D-PETERSBURG. (PHOTO BY NED OLIVER/VIRGINIA MERCURY)

Though the draft decision wouldn’t have any immediate policy impacts in Virginia, the leak already appeared to be reshaping the political debate ahead of the congressional midterms.

The Democratic Congressional Campaign Committee issued a release spotlighting the anti-abortion positions of many of the Republican candidates hoping to unseat Democratic Reps. Abigail Spanberger, Elaine Luria and Jennifer Wexton.

“Electing Virginia Republicans will stack Congress with politicians who support their party’s decades-long dream of ripping away women’s freedom to make their own decisions about their bodies,” said DCCC spokesperson Monica Robinson.

Shortly after the leak was reported Monday night, Yesli Vega, a candidate seeking the GOP nomination to run against Spanberger in the Northern Virginia-based 7th District, praised the news as a “historic moment in the making.”

“An amazing victory in the fight for the life and liberty of our most vulnerable, the unborn,” Vega said in a tweet that linked to the POLITICO story.

Some legislators said the Youngkin administration could seek to restrict abortions outside the legislative process if Roe v. Wade is overturned. Hudson pointed out that the leaked decision also rejected the court’s previous ruling in Planned Parenthood v. Casey —  a 1992 decision that limited state laws designed to create “a substantial obstacle” for patients seeking the procedure.

It’s possible the administration could pursue a regulatory route to rolling back access. In 2014, for example, then-Gov. Terry McAuliffe did the reverse, appointing pro-choice representatives to the Virginia Board of Health and ordering the agency to review strict licensing restrictions on abortion clinics.

“I’m sure they’ll try that route,” said Sen. Jennifer McClellan, D-Richmond, who sponsored the state’s 2020 Reproductive Health Protection Act. But she also pointed out that the legislation repealed the underlying code allowing such stringent regulations, limiting the board’s authority to pass new rules.

“I think we were pretty clear in the statute about what legal access to abortion looks like,” McClellan said. “It’s important to remember that we’ve become a safe haven, not only here in the South but across the country.” 

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