In Virginia right now, a Democratic member of the legislature is reportedly receiving death threats and the state’s Democratic governor is being accused of supporting infanticide over a bill that seeks to amend a current abortion law.
All of this started earlier this month, when Democratic state delegate Kathy Tran, one of the record number of women voted into office following Trump’s election, introduced House Bill 2491, which would change the state’s current law on later abortion to require just one doctor, rather than three, to approve the procedure.
Here’s the relevant text of the bill (with strikethroughs reflecting the proposed changes to Virginia’s current law):
and two consulting physicians certifycertifies and so enterenters in the hospital record of the woman ,that in theirthe physician’s medical opinion, based upon theirthe physician’s best clinical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediablyimpair the mental or physical health of the woman.
What the bill does, broadly, is to give more discretion to make medical decisions to the patient and their physician. It lays out a legal framework premised on trusting the medical and moral judgment of doctors and patients, but—because this is how anti-abortion policy-making and culture war-waging goes—is being framed by conservatives as doing something sinister.
Much of which came to a head on Tuesday, after Republicans began sharing a video of Tran defending the bill in a subcommittee hearing. During the hearing, House majority leader Todd Gilbert, a Republican, asked Tran if the bill would allow a patient with severe health issues to receive an abortion as she was going into labor.
“Mr. Chairman,” she said, “that would be a decision that the doctor—the physician—and the women would make at that point.” When pressed again, she added that the bill “would allow that.”
During a radio interview with WTOP on Wednesday, Governor Ralph Northam, a former pediatric neurologist, was faced with the same question. “So in this particular example, if a mother’s in labor, I can tell you exactly what would happen,” Northam said. “The infant would be delivered, the infant would be kept comfortable, the infant would be resuscitated if that’s what the mother and the family desired. And then a discussion would ensue between the physicians and the mother.”
The questions, both from Gilbert and the interviewer at WTOP, had their intended effect: derailing a conversation about the harm of imposing legislative barriers to medically and morally complex decisions made between doctors and patients. Instead, the conversation has once again been centered around right-wing talking points rather than medical reality. According to the Guttmacher Institute, later abortions are incredibly rare: most patients seek abortions early in pregnancy, and only one percent of abortions are performed at 21 weeks or later. However, the reasons for seeking later abortions are highly varied: a person may be facing unanticipated health issues, the fetus may have severe or non-viable medical complications, a person may not have been able to raise the funds or insurance coverage to pay for an earlier abortion, or a victim of abuse might not have been able to secure an abortion earlier. (This may not even capture all of the circumstances a person faces while making this choice.)
Still, conservatives predictably ran with the “resuscitated infant” comment, spreading bad faith reports that Northam and Tran support killing babies. “Do you remember when I said Hillary Clinton was willing to rip the baby out of the womb?” Donald Trump told The Daily Caller in response to a video of Tran’s testimony. “That’s what it is. That’s what they’re doing. It’s terrible.” The bill failed in the subcommittee.
But Northam’s comments, and Tran’s bill, are hardly radical. In January, New York codified Roe v. Wade, allowing abortions post-24 weeks in cases where the patient’s health is at risk or when considered medically necessary. A similar bill is moving through the Rhode Island legislature.
Yet, as the New Yorker’s Jia Tolentino has written, even these bills continue to litigate which later abortions are legal and which are not, clinging to the same framing—“the idea that there are people who want to kill babies, and the law exists to prevent killing,” she wrote—instead of engaging with the often difficult medical and moral circumstances under which later abortions are performed.
As Dr. Susan Robinson, a retired later abortion provider who appeared in the documentary After Tiller told Tolentino, there was no one-size-fits-all solution. Every case is unique:
I was in my mid-twenties when I saw “After Tiller,” and it was the first time I’d really thought about late-term abortion. I was struck by Robinson’s aura of sorrowful compassion. She spent every day with an ethical question that many people abhor. I asked her how she drew her own lines—if she ever refused to perform an abortion when a woman’s fetus was healthy. The calculus was hard, she said. Sometimes the compelling factor was that the patient was eleven years old. But what if the patient were fifteen, or sixteen? “What is the ethical difference between doing an abortion at twenty-nine and thirty-two weeks?” she said she would ask herself, weighing each situation. She’d had a patient from France, she told me, who came to her at thirty-five weeks, and she had turned that woman down. “It wouldn’t be safe,” she said.
Current laws on later abortion are written to suggest that none of this grappling—by patient and doctor, together—takes place at all, and instead must be forced on a patient who is otherwise approaching the decision lightly. This is what happens when people with a pervasive, deep mistrust of patients seeking abortion write our laws. Even an hour spent reading the actual literature, from patient stories to physician testimonials and data on later abortion, exposes this for the lie it is. But it’s a useful lie told again and again, and those things always carry much further than the truth.