Virginia is One Vote Away:
Supreme Court Again Proves that “States Matter.”
If Roe vs. Wade is overturned in the next few weeks, it will be the culmination of a decades-long strategy waged in the states to undermine and overturn the 1973 decision establishing a federal constitutional right to reproductive choice.
And it will place the Commonwealth of Virginia in the middle of the next fight to protect a woman’s right to choose.
The challenge to this right came from states, including Mississippi, that passed laws designed to place Roe before the Supreme Court for possible reversal. Once Justices Kavanaugh and Coney Barrett were confirmed, the handwriting was on the wall. At the very least, Roe would be substantially eroded.
The conservative majority on the court, however, has apparently gone for the jugular, and will arguably destroy a federal constitutional right for the first time in our history. The language of the “leaked” Alito opinion is shocking in its directness. Absent is the traditional Supreme Court nuance discussing precedents and stare decisis that Justice Kavanaugh spent so much time celebrating—under oath—in his confirmation hearing to assure the Susan Collins’s of the world that Roe was safe. Now, he joins an opinion that labels the original Roe decision as “egregiously wrong.”
Return Back to the States
With the Supreme Court decision, abortion law will return to the states, many of whom have already passed substantial restrictions that will take affect the day after the decision is issued. Thirteen states passed so-called “trigger laws” that ban all or nearly all abortions upon the overturning of Roe. And four states have passed constitutional amendments explicitly prohibiting use of public funds for abortion or declaring the practice illegal. In 2018, Alabama became the first state in the nation to include what opponents call a “personhood clause” in its constitution. Similar language was proposed for Virginia law several years ago but was rejected. West Virginia recently voted to criminalize abortion, an action that could be enforced after Roe’s termination. Texas recently passed a law essentially shutting down abortion in the state and, just this year, Kentucky, Florida, and Arizona passed measures banning abortion after 15 weeks of pregnancy except in cases of life endangerment. Last week, Oklahoma banned all abortion unless necessary to save the life of the mother. Overnight, these laws will become enforceable in the states of enactment and will be precluded from being challenged in federal courts.
Challenge in the Commonwealth
Virginia was a hotbed for abortion controversy throughout the last decade but has been able to avoid any serious restrictions to reproductive choice since the days of the “transvaginal ultrasound bill” and efforts to shutter abortion clinics. In the last decade, the Commonwealth has been fortunate to have democratic governors and a state Senate who have blocked these efforts. So-called “personhood bills” were defeated by moderate elements in the General Assembly. Former Governor Terry McAuliffe was proud of serving as a “brick wall” in support of reproductive rights, wielding his veto pen on many occasions to prevent the Commonwealth from joining states hostile to Roe. All of that is about to change. Virginia is now only one vote away from joining states that are on the wrong side. Our new Governor is proudly pro-life and his response to the “draft” opinion is outrage at the leak and not at the logic of the argument. Moderates in our state Senate no longer exist and observers expect to see a flurry of new bills restricting abortion from the House of Delegates next January. To date, the Virginia Senate has shown little indication to go along. But with the flip of one Senate seat in 2023, Virginia could easily enact prohibitions that resemble Mississippi or Texas. Our House of Delegates is clearly ready to pass a draconian bill and Governor Youngkin would likely sign it.
Impact in the States
Reproductive rights advocates have few options short of political mobilization. A federal constitutional amendment enshrining the right to privacy is likely years away. Congressional legislation is also possible, but not likely without a major shift in the political dynamic that would bring major Democratic victories this fall.
With Roe’s demise, the battle will further intensify in the states, and one of the first will occur in Kansas. In 2019, the Supreme Court of the Sunflower state held that its constitution protects abortion rights. Republican lawmakers have now placed an initiative on the state’s August ballot that would overturn it. The stakes in governors’ races such as Georgia have increased. And advocates of reproductive choice need to redouble their efforts to alter the character of state legislatures hostile to Roe. Beyond that, they have other tools. There are presently 10 states that explicitly include the “right to privacy” in their Constitutions, and this may be one weapon to use as the fight continues. Some states also permit changing their constitutions or statutes through a process known as “initiative petition,” where citizens gather signatures to put measures on the ballot for a direct vote of the public. Just as these have been used to restrict rights, advocates should use these options to expand them. Michiganders are now seeking to place an abortion rights amendment on the ballot for this fall.
One Nation: Two Countries
With the overturning of Roe, the Supreme Court will accelerate the movement of this nation toward two different countries, one in which rights are protected and another where they are being eroded, from the right to vote to the right of choice. Although states such as Washington, Connecticut, and New Jersey have expanded abortion rights, and some state Supreme Courts have held that their constitutions protect those rights, the energy in half of the states has been to upset Roe. For those who value reproductive choice, it is time to get to work.