Virginia provides fairly comprehensive protection for women, the unborn, and newly born. It is also one of only a small number of states that has enacted meaningful, protective regulations for emerging biotechnologies. For example, it bans human cloning for all purposes and maintains an umbilical cord blood bank and related educational initiative. In 2013, it rejected multiple measures that would have weakened the state’s ultrasound requirement and abortion clinic regulations.
- Virginia prohibits “partial-birth infanticide” (i.e., partial-birth abortion).
- A third-trimester abortion may not be performed unless the attending physician and two other physicians certify in writing that continuation of the pregnancy is likely to result in the woman’s death or would “substantially and irremediably impair” the woman’s physical or mental health. Further, measures for life support for the unborn child “must be available and utilized if there is any clearly visible evidence of viability.”
- A physician may not perform an abortion on a woman until at least 24 hours after the woman is provided with in-person counseling, including “a full, reasonable, and comprehensible medical explanation of the nature, benefits, risks of and alternatives to abortion:” the probable gestational age of her unborn child; and descriptions of available assistance and benefits, agencies and organizations providing alternatives to abortion, and the father’s legal responsibilities.
- Virginia requires that a woman undergo an ultrasound and have the opportunity to view the images prior to an abortion.
- A physician may not perform an abortion on an unemancipated minor under the age of 18 until he or she secures written consent from one parent or “authorized person” who has care and control of the minor, unless the minor is the victim of rape, incest, or child abuse, there is a medical emergency, or the minor secures a court order.
- Virginia regulates any facility in which five or more first trimester abortions per month are performed as a category of “hospital.”
- The state also requires that second-trimester abortions be performed in a hospital or ambulatory surgical center. The U.S. Supreme Court has upheld the constitutionality of this requirement.
- Only a physician licensed by the state to practice medicine and surgery may perform an abortion.
- The state has an enforceable abortion reporting law, but does not require the reporting of information to the Centers for Disease Control (CDC). The measure pertains to both surgical and nonsurgical abortions.
- The state provides funding for women eligible for public assistance for abortions only in cases of rape, incest, fetal abnormality, or when the life of the mother is in jeopardy.
- No expenditures from general or non-general fund sources may be made out of any appropriations by the General Assembly for providing abortion services, except as otherwise required by federal law or state statute.
- No post-partum family planning funds provided to women under the state’s Medicaid program may be used to make direct referrals for abortion.
- Benefits provided to state employees through the “Commonwealth of Virginia Health Benefits Plan” may not provide coverage for abortion unless the procedure is necessary to preserve the woman’s life or health, the pregnancy is the result of rape or incest that has been reported to a law enforcement or public health agency, or a physician certifies that the fetus is believed to have an incapacitating physical deformity or mental deficiency.
- The state prohibits insurance companies from offering abortion coverage within state insurance Exchanges established pursuant to the federal healthcare law, except in cases of life endangerment, rape, or incest.
- Virginia offers “Choose Life” license plates, the proceeds of which benefit abortion alternatives. Unfortunately, the state also offers a pro-abortion license plate, “Trust Women/Respect Choice.” However, while Planned Parenthood and other abortion providers are eligible to receive the proceeds from the plate, they are specifically prohibited from using the earned revenue for “abortion services.”
Legal Recognition and Protection of Unborn and Newly Born:
- Under Virginia law, the killing of an unborn child at any stage of gestation is defined as a form of homicide.
- For purposes of “homicide” and “child abuse,” a “human infant who has been born alive and is fully brought forth from the mother has achieved an independent and separate existence, regardless of whether the umbilical cord has been cut or the placenta detached.”
- The state permits recovery for the death of an unborn child in a wrongful death (civil) action.
- Virginia protects infants born alive at any stage of development from “deliberate acts” undertaken by a physician that result in the death of the infant.
- Virginia has enacted a “Baby Moses” law, establishing a safe haven for mothers to legally leave their infants at designated places and ensuring the infants receive appropriate care and protection.
- Virginia requires emergency personnel to report child abuse including cases of in utero exposure to controlled substances, and healthcare providers are required to report to the state Department of Social Services any diagnosis of fetal alcohol spectrum disorders or other medical condition caused by exposure to controlled substances during pregnancy. The state also funds drug treatment programs for pregnant women and newborns.
- The state also funds drug treatment programs for pregnant women and newborns.
- Virginia prohibits human cloning for any purpose, but it does not prohibit destructive embryo research or fetal experimentation.
- Virginia prohibits tax credits for research on human cells, on tissue derived from induced abortions, on stem cells obtained from human embryos. This provision is an annual rider.
- Virginia maintains the “Virginia Cord Blood Bank Initiative” as a public resource for advancing basic and clinical research and for the treatment of patients with life-threatening diseases or debilitating conditions. All women admitted to a hospital or birthing facility may be offered the opportunity to donate umbilical cord blood to the initiative. Likewise, every licensed practitioner who renders prenatal care is to provide information to pregnant patients regarding the option of umbilical cord blood banking.
- The state has also created a special fund in the state treasury entitled the “Christopher Reeve Stem Cell Research Fund.” No monies from the fund may be provided to entities that conduct research with stem cells stem obtained from human embryos.
- Virginia maintains some regulation of assisted reproductive technologies, including requiring a form of informed consent. However, the state does not regulate human egg harvesting.
End of Life Laws:
- Virginia does not have a specific statute criminalizing assisted suicide. However, Virginia has adopted the common law of crimes, including the crime of assisted suicide.
Healthcare Freedom of Conscience:
Participation in Abortion:
- Any person who objects in writing and on personal, ethical, moral, and/or religious grounds is not required to participate in abortions.
- A physician, hospital, or medical facility is not required to admit a woman for the purposes of performing an abortion.
- The conscientious objection of an individual healthcare provider, hospital, or medical facility to participating in an abortion may not be a basis for a claim for damages, denial of employment, disciplinary action, or any other recriminatory action.
Participation in Research Harmful to Human Life:
- Virginia currently provides no protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral oe religious beleif.
What Happened in 2013:
- Virginia enacted a measure setting up their state health insurance Exchange required under the Affordable Care Act which included a provision prohibiting abortion coverage. This measure furthered a policy adopted by Virginia in 2011.
- Virginia considered measures related to prohibiting sex-selection abortions, coerced abortions, and abortion funding.
- At the behest of abortion advocates, Virginia considered—but defeated—six measures aimed at repealing or weakening a 2011 law defining abortion clinics as subsets of “hospitals.” Similarly, the state also defeated legislation aimed at rescinding or weakening its ultrasound requirement.
- A lawsuit was filed by Falls Church Medical Center challenging the state Board of Health regulations (passed in April 2013) which reclassified Virginia’s 19 abortion clinics as a subset of “hospitals,” essentially requiring the clinics to meet the same patient care standards as other facilities performing outpatient surgeries.
- Virginia considered measures related to advance planning documents, as well as measures related to pain management and palliative care.
- The state considered legislation offering or expanding protection for healthcare payers, but such legislation would not be enforceable against the so-called “HHS mandate” that requires nearly all health insurance plans to provide full coverage (without co-pay) of all “FDA approved contraceptives.”
Recommendations for Virginia
Women’s Protection Project Priorities:
- Women’s Health Defense Act (5-month abortion limitation)
- Abortion-Inducing Drugs Safety Act
- Parental Involvement Enhancement Act
- Child Protection Act
- Defunding the Abortion Industry and Advancing Women’s Health Act
- Coercive Abuse Against Mothers Prevention Act
- Prenatal Nondiscrimination Act
Legal Recognition and Protection for the Unborn:
- Pregnant Woman’s Protection Act
- Destructive Embryo Research Act
End of Life:
- Assisted Suicide Ban Act
Healthcare Freedom of Conscience:
- Healthcare Freedom of Conscience Act