The Post-Roe Legislative Fight for Life
Following the overturning of Roe v. Wade and Casey v. Planned Parenthood in late June, a flurry of pro-abortion bills have been drawn up in the federal legislature. Some passed the House but were halted in the Senate with one Democrat being the deciding vote, and prevented abortion from becoming federally protected. The U.S. Senate (50 -50) is eerily similar to our own Virginia Senate in which Democrats have a on seat advantage (21-19), with one Democrat Senator who is considered to be “less extreme” than his counterparts and is said could be counted on for pro-life and school choice bills. While all these pro-abortion bills are evil, some seek to reinstate all the same issues that Roe and Casey plagued the courts with for half a century.
Senate Bill 4688, carried by our own Virginia Senator, Tim Kaine (D), implements the “undue burden” standard that Casey created. Justice Alito explained in Dobbs that the undue burden standard was legislative in nature and did not belong as a product of the Court. One may argue that this standard is now in its proper jurisdiction, however that ignores the completed havoc this standard caused for states and the courts. Alito recognized this point in Dobbs, specifically he described it as “obscure” and “impossible to draw with precision”. Of course, that’s why abortion advocates favor this convoluted standard – to muddy the water as much as possible. The undue burden standard can easily be construed to knock down any pro-life law, so long as a liberal or Left-leaning judge is on the bench. Such a battle occurred in 2019 with Virginia’s pro-life laws; only for them to be removed less than a year later by our state legislature.
To further complicate the matter, Sen. Kaine’s definition of “undue burden” does not offer much clarity, citing an undue burden as “a substantial obstacle in the path of a woman seeking to terminate a pregnancy before fetal viability”. This equally confusing term is yet another creation of the Court that Dobbs overruled (see June Medical Services L.L.C. v Russo and Dobbs v. Jackson Women’s Health), in which Justice Alito described it as “ambiguous” and “inconsistent with the undue burden standard”. That means the courts would be called on – yet again – to interpret “substantial obstacle” test.
To illustrate the ambiguity the bill would resurrect, it could easily be argued that a 24-hour wait period is not a substantial obstacle to obtaining an abortion, and yet it has been repeatedly argued by abortion activists that the waiting period creates an undue burden (a “substantial obstacle” under SB 4688) for the mother. In another example, reasonable regulations ensuring a clean facility with proper record keeping would once again be pushed as an “undue burden” by somehow creating a substantial obstacle in a women obtaining an abortion.
Substantial obstacle aside, it should be noted that the definition also includes “before fetal viability,” the same confusing and unclear line that Roe created – especially considering that fetal viability continues to change due to scientific development in medicine. In addition to that, adopting any kind of viability standard immediately prevents the outright banning of abortion, including any heartbeat laws or protections beginning at conception. This bill essentially codifies Roe and Casey and all their problems. Thankfully SB. 4688 has yet to even progress through the committee process in the Senate.
Ultimately, there is no good way to legislate abortion, which is a dark and barbaric practice that has been a stain on our country for half a century. The danger in federally protecting abortion is that it takes away from Americans the ability to decide on the issue at the state level and creates a mess for the courts that does not favor pro-life protections. While there have been other federal abortion bills that tackle the issue from other angles, but all aim to accomplish the goal of codifying a right to abortion and preventing any pro-life protections from going into place, they have thankfully failed to pass the Senate (by one vote!).
As for Virginia, the battleground doesn’t bode well for any pro-life efforts. Having been a purple state in terms of representation, we are in a tough fight to protect life with the Senate Education and Health committee standing in the way of any meaningful pro-life achievements. The ruthless Senate Education and Health committee is where most of our good bills have died (see parental rights report card from last year, which doesn’t include some pro-life bills that also met their demise). This does not mean that we won’t see pro-life bills introduced this year or that we won’t fight hard to get them on the Senate Floor and passed. But in the words of the Governor Phil Bryant of Mississippi who signed the 15-week ban that overturned Roe, “It is worth fighting over.” You never know what miracles God can work.
