Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court last month. Now that the swing vote in landmark cases likely will be replaced by a more consistently conservative justice, those on both sides of the decades-old abortion debate are gearing up for the impact the new bench makeup could have on access to abortion.
Four states have trigger laws in place, which immediately ban abortion if Roe v. Wade is overturned. Nine states have legislation that protects abortion rights regardless of a rollback. Virginia has neither. What it does have is a series of laws that one side says are medically unnecessary and harmful to women, and the other side argues don't do enough to restrict access to abortion.
Days before Kennedy announced his retirement, four health care providers in Virginia sued the state over those laws. The lawsuit states that Virginia has spent more than four decades "enacting layer upon layer of unnecessary and onerous abortion statutes and regulations." For patients and abortion providers, it says, the restrictions are "not supported by medical evidence" and exist to "impede the ability of Virginians to access safe, legal and high-quality abortion care."
Regulations referred to in the suit include a "physician-only law," which prohibits advanced practice clinicians from providing abortions, the "two-trip mandatory delay law" which requires a woman seeking an abortion to undergo an ultrasound 24 hours before the procedure, and the "hospital requirement," which criminalizes second-trimester abortions performed outside a licensed hospital.
"Medically unnecessary abortion restrictions block access to care for Virginia patients," says the Virginia League for Planned Parenthood's medical director, Shanthi Ramesh. "I've dedicated my entire career to providing patients quality reproductive health care, which includes abortions. It's scary and enraging to think access to safe legal abortion is on the line and that President Trump could tip the balance of the Supreme Court."
The U.S. Senate must consent to Supreme Court justices. Neither of Virginia's senators is on the Judiciary Committee, but both will still vote for or against President Donald Trump's nominee.
The day after Kennedy's announcement, Sen. Tim Kaine's office released a statement that the Republican Senate leadership established a clear precedent when it refused to take up the Supreme Court nomination of federal Judge Merrick Garland: "Do not fill a Supreme Court vacancy in an election year. It is only fair that this precedent should also be applied to the vacancy created by the retirement of Justice Anthony Kennedy only four months before the 2018 midterm election."
Kaine also told a crowd at a recent Hampton Roads campaign rally that allowing states "to go back to criminalizing women's freedom to make their own health care decisions would be devastating."
Gov. Ralph Northam's spokeswoman, Ofirah Yheskel, says he and his team are closely following the nomination process, and he will "work with the General Assembly to continue to protect women's health care rights."
Pro-life advocates are eager to learn Trump's pick for the bench. Olivia Gans-Turner, president and lobbyist for pro-life nonprofit Virginia Society for Human Life, says her group's belief is simple: The right to life is a basic civil right, and the Supreme Court overstepped in the 1973 Roe v. Wade ruling and subsequent abortion-related cases.
"We've seen courts for many years move to expand abortion access throughout the U.S. and protect abortionists at the expense of women's well-being and the lives of our children," Gans-Turner says. "The VSHL has always taken the position that we would like to see the strongest, most broadly protective laws passed as possible. We would like to see a human life amendment passed at the federal level."
Gans-Turner, who had an abortion when she was in college in the 1980s, describes her experience as belittling and humiliating. She recalls visiting four different abortion providers, and says she was repeatedly called foolish for having second thoughts, and felt pressured to go through with the procedure. She says she repeatedly hears her own story from other pro-life women who have had abortions, and that she and her peers never received support for their "post-abortion trauma."
Gans-Turner says there's little point in speculating, but she'd love to see the Supreme Court overturn Roe v. Wade.
"In the meantime, laws that are being passed by the states should continue to be passed, like informed consent laws," she says, adding that such laws "respect a woman's dignity" by giving her the "full range of information about assistance available and the medical realities of abortion."
Informed consent statutes are named in the lawsuit against Virginia as a provision to the 24-hour mandatory delay law: "Providers share rigid categories of so-called 'informed consent' information with patients and offer them materials produced by the states that have consistently been filled with false, misleading and inaccurate information about abortion."
At press time, Trump had not yet announced his nominee for Kennedy's replacement [Ed. note: He nominated DC insider Brett Kavanaugh on Monday night, who has a long track record and critics on the left and right ]
"President Trump has repeatedly promised to only appoint biased justices who pass his anti-abortion litmus test," Ramesh says. "Access to safe, legal abortion is on the line in Virginia. Planned Parenthood and our supporters will fight like hell to protect our rights to control our bodies and our lives at the most basic level." S