Bench Memos

Law & the Courts

My NR Essay on Virginia’s Abortion Referendum

NR’s home page on Tuesday featured my essay “Virginia’s Amendment 1 Is Extreme and Deceptive: The voter referendum would allow abortion up to birth, abolish parental consent, and more.” Here’s an excerpt:

Amendment 1 would make abortion freely available through the third trimester of pregnancy.

A mother’s third trimester of gestation begins in week 27 or 28 of her pregnancy. An unborn baby is generally considered viable — i.e., able to survive outside the womb — at week 23 or 24.

Current Virginia law allows a woman to obtain an abortion in the third trimester when “the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman.” The law provides protections to ensure that the exception is invoked legitimately: The physician who will perform the abortion and two consulting physicians need to verify that the circumstances exist.

Amendment 1 would eviscerate these protections. An abortion could be done in the third trimester any time that an abortionist believes that an abortion is “medically indicated” to “protect the life or physical or mental health” of the mother. For many abortionists, that standard will be no limit at all. As longtime (now retired) third-trimester abortionist Warren Hern put it, “I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.” The American Psychological Association maintains that “people who are denied abortions are more likely to experience higher levels of anxiety, lower life satisfaction and lower self-esteem compared with those who are able to obtain abortions.” So, the logic goes, denying an abortion to a woman who wants to abort puts her mental health at risk, and an abortion is therefore “medically indicated” to “protect [her] mental health.”

Ed Whelan holds the Antonin Scalia Chair in Constitutional Studies at the Ethics and Public Policy Center and is a regular contributor to National Review’s Bench Memos blog.
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