The Democratic gubernatorial nominee is portraying himself as an advocate of the status quo in Virginia, but he’s backing an extreme amendment that would enshrine a right to abortion.
Richmond, Va.
In January 2019, Virginia Democratic delegate Kathy Tran caused an uproar when she admitted that a bill she introduced to codify Roe v. Wade would allow abortion to be performed in the last moments of the ninth month of pregnancy if a single doctor asserted that the abortion was being performed to protect the mother’s mental health.
Democrat Terry McAuliffe, who served as Virginia governor from 2014 to 2018 and is now seeking another term in this fall’s gubernatorial election, initially said that he opposed Tran’s bill. Later that spring, however, he changed his mind, saying on a local radio program: “I would not have vetoed the bill.” (In Virginia, a bill passed by the legislature automatically becomes law if the governor does not formally issue a veto.)
McAuliffe earned a “full flop” from PolitiFact in 2019 for changing his position on Tran’s abortion bill.
On Tuesday, McAuliffe held a press conference on the issue of abortion, but he refused to say whether he would prevent Tran’s abortion bill from becoming law if it landed on his desk.
“I support the existing laws on our books,” McAuliffe told National Review when asked if his position on vetoing Tran’s bill has changed. “The one change I would like to see as governor — and I’ve already talked to [Democratic state] Senator McClellan about it — I want to see a bill sent to me that would enshrine Roe v Wade in the [Virginia] constitution.”
Asked again whether his statement meant that he would veto Kathy Tran’s abortion bill, McAuliffe declined to answer and walked away.
Earlier in the press conference, McAuliffe stuck to the same talking points when asked if he would sign a bill providing public funding in the state’s Medicaid program for all legal abortions. McAuliffe said he supports the “laws that we have on the books today” while also calling for an amendment that would “enshrine Roe v. Wade in Virginia’s constitution.” Taxpayer funding of abortion in the Medicaid program is generally prohibited in Virginia.
Asked if that amendment enshrining Roe would result in Virginia’s Medicaid program paying for all legal abortions, McAuliffe dodged the question. “I support the laws on the books today. I would be interested in seeing Roe enshrined in our constitution,” he replied.
The messaging from McAuliffe, the former chairman of the Democratic National Committee, may be a good campaign tactic, but it’s disingenuous for two reasons. Not only does he refuse to say whether he would actually stop extreme bills on taxpayer-funded and late-term abortions from becoming law by issuing a veto, McAuliffe is also pushing for an amendment that would render most — if not all — of Virginia’s laws restricting abortion invalid.
The constitutional amendment on abortion that Virginia Democrats have introduced says: “That an individual’s right to personal reproductive autonomy is central to the enjoyment of life and liberty and shall not be denied or infringed upon unless justified by a compelling interest of the Commonwealth and achieved by the least restrictive means.”
The language about “least restrictive means” instructs judges to apply a “strict scrutiny” test to any law infringing upon a right to “personal reproductive autonomy.” That’s the same high standard that must be met under the federal Religious Freedom Restoration Act for any federal law infringing upon religious liberty — a standard that the Supreme Court has applied for decades in First Amendment religious-liberty cases.
“[The amendment] would invalidate the current code in Virginia and suggest that any regulations are an impediment,” says Olivia Turner of the Virginia Society for Human Life. “That would mean Kathy Tran’s bill wouldn’t have to come up again because an amendment would make the question moot.” It’s also likely that a constitutional amendment enshrining a right to abortion would result in the invalidation of Virginia’s statute limiting taxpayer funding of abortion.
No state in the nation has a constitutional amendment enshrining a right to abortion, but Vermont could be the first state to enact one in 2022.
In Virginia, that decision will ultimately be left to the state’s legislature and its voters. For an amendment to be added to the constitution in Virginia, it must be passed twice by the General Assembly with an intervening election between both votes. Then the amendment is put on the ballot for voters to approve.
Democrats currently control the House of Delegates and hold a 21–19 advantage in the state senate. One Democratic state senator generally votes pro-life: In 2020, the state senate passed a bill liberalizing Virginia’s abortion law after then–Lieutenant Governor Justin Fairfax cast a tie-breaking vote.
Virginia’s existing statute on abortion is already extremely permissive, allowing abortion to be performed for any reason up to 28 weeks of pregnancy — and after 28 weeks if three doctors certify that a woman’s physical or mental health would be “substantially and irredeemably” harmed without an abortion. Since that abortion statute was first enacted, science has advanced so that premature infants born as early as 21 weeks of pregnancy have survived.
Republican gubernatorial nominee Glenn Youngkin has expressed support for legislation protecting unborn children capable of feeling pain at 20 weeks of pregnancy.
Youngkin has dodged when asked if he’d support further restrictions on abortion, but so long as the state senate is controlled by Democrats, it’s impossible to imagine that even a bill protecting unborn children capable of feeling pain would be brought up for a vote in the legislature’s upper chamber.
Those facts have nevertheless not stopped Terry McAuliffe from falsely claiming that Youngkin has said he would “ban all abortions.”
“Glenn Youngkin, in July, was caught secretly on tape saying that when he is governor, and he has the House, that he will defund Planed Parenthood, and he will ban all abortions in the Commonwealth of Virginia,” McAuliffe said at Tuesday’s press conference. “He will bring the Texas-style law here to Virginia.”
Olivia Turner of the Virginia Society for Human Life says that her organization isn’t pushing for such a law.
“We’re really aware that where most people are in Virginia right now is rational laws like pain-capable bills,” says Turner. “Like a bill that addresses what Governor Northam brought up with Kathy Tran. We would like to see a ‘Born-Alive Abortion Survivors Protection Act’ passed here. Clearly there’s a need for it because none of the Democrats running [for statewide office] denounced what Governor Northam suggested could or should happen to a baby that does survive an abortion late in pregnancy.”
Turner noted that there first needs to be pro-life control of the House of Delegates, the state senate, and the governorship before the state could enact legislation that’s “rational and reasonable and acceptable to the vast majority of people in Virginia.”