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Virginia’s Foolish Personhood Law

Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception:

Virginia lawmakers took a step toward outlawing abortion on Tuesday by approving “personhood” legislation that grants individual rights to an embryo from the moment of conception.

The Republican-controlled House of Delegates voted 66-32 in favor of defining the word person under state law to include unborn children “from the moment of conception until birth at every stage of biological development.”

The measure now heads to the Senate, which is evenly split between Republicans and Democrats but with Republican Lieutenant Governor Bill Bolling wielding the tie-breaking vote.

Republican Delegate Bob Marshall, an abortion opponent who introduced the legislation, said the 1973 Roe v. Wade Supreme Court decision legalizing abortion in the United States would not have been rendered if Texas state law had regarded the unborn as a person “in the full sense.”

“So this is a first step, a necessary step, but it’s not sufficient to directly challenge Roe,” Marshall said in a phone interview.

Virginia’s approach differs from failed attempts to define a fertilized egg as a legal person in Colorado in 2008 and 2010 and in Mississippi in 2011.

Virginia’s effort avoids involving a constitutional amendment like those states, instead seeking changes throughout the legal code, said Elizabeth Nash, public policy associate at the Washington-based Guttmacher Institute, which studies reproductive health issues.

But she said the intent is the same, with the measure ultimately aimed at banning abortion, contraception and infertility treatment.

“Should this bill become law, it could have a far-reaching impact on women’s access to health care,” Nash said. “No state, as yet, has adopted anything like this.”

Delegate Marshall and other supporters of the bill deny that the Personhood Bill would outlaw abortion or any other procedure and, as a direct matter, that’s true. However, all you need to do is take a look at the text of the bill to see where this is all headed:

Be it enacted by the General Assembly of Virginia:

1.  § 1. The life of each human being begins at conception.

§ 2. Unborn children have protectable interests in life, health, and well-being.

§ 3. The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.

§ 4. The laws of this Commonwealth shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development all the rights, privileges, and immunities available to other persons, citizens, and residents of this Commonwealth, subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this Commonwealth.

§ 5. As used in this section, the term “unborn children” or “unborn child” shall include any unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.

§ 6. Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

§ 7. Nothing in this section shall be interpreted as affecting lawful assisted conception.

At first glance you can see that the drafters of the Virginia law have learned a few lessons from the failed efforts to pass a “Personhood” initiative that have taken place in other states over the years. Unlike those efforts, Virginia is purporting to place this definition into the Virginia Code. Additionally, the law states that it is subject to the Constitution and the decisions of the Supreme Court, and includes a provision stating that it should not be construed as “affecting lawful assisted conception.” At the same time, however, Section 5 of the bill defines life as beginning at the moment of conception, meaning that every form of birth control that seeks to interfere with implantation of a fertilized egg in the uterus would be potentially illegal. While Marshall insists that this is not the case, it is noteworthy that he rejected an amendment that would have exempted contraception from the law.

Moreover, while Marshall attempts to paint his legislation in an entirely benign light, it’s fairly clear that it would have broad implications across a wide range of Virginia law:

Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

“To claim using birth control will get you in trouble with this statue is simply false,” Marshall said. “It does not have the affect of criminalizing birth control. This does not directly effect abortion.”

Critics disagree.

“This bill requires every single code section in Virginia that uses the word ‘person’ to apply to a fetus,” Del. Jennifer McClellan (D-Richmond) said. “That opens families and doctors to a wide variety of criminal and civil lawsuits for health-care decisions not only in cases of unwanted pregnancies, but every pregnancy and even miscarriage.”

Put simply, Marshall’s contention that this is a law of limited applicability is false. It is, in fact, a Pandora’s Box that is likely to have a whole host of unintended consequences if allowed to go into effect, starting with the impact on contraceptives that I noted above. For that reason alone, it’s telling that the bills supporters decided to go the legislative route rather than proposing this as an Amendment to the state’s Constitution, which would have required approval by a voter referendum. That’s something that’s been tried twice before, in Colorado and just last year in Mississippi, and it failed miserably both times. If a Personhood Amendment can’t pass in on of the most conservative states in the Union, then it likely would not pass in Virginia either. It’s far easier to get something like this through a Republican-controlled legislature, where members will see the vote as a way to burnish their pro-life bona fides.

From here, the bill goes to the State Senate, which is divided equally between Republicans and Democrats,  but where a tie would be broken by the Republican Lt. Governor Bill Bolling, who just so happens to be running for Governor in 2013 and faces a primary next year against Attorney General Ken Cuccinelli. Given that, I have little faith that Boling would buck his own party Even one Republican defection, though, would mean the bill is dead at least for this ear. Even there, though, I’m not at all optimistic. This bill looks for all the world like it’s going to pass, and then it will be up to the courts to save Virginia from the mess that it would create.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. At the same time, however, Section 5 of the bill defines life as beginning at the moment of conception, meaning that every form of birth control that seeks to interfere with implantation of a fertilized egg in the uterus would be potentially illegal. While Marshall insists that this is not the case, it is noteworthy that he rejected an amendment that would have exempted contraception from the law.

    But remember, Santorum is not advocating bans on contraception. No, no, it would be completely ridiculous to suggests that’s what he wants.

    Like or Dislike: Thumb up 12 Thumb down 0

  2. mantis says:

    “This bill requires every single code section in Virginia that uses the word ‘person’ to apply to a fetus,” Del. Jennifer McClellan (D-Richmond) said.

    That’s incorrect. It would have to apply to all fertilized eggs/embryos. About half of fertilized eggs don’t even implant. Who is to blame for all of those “deaths” of embryonic “persons?” Then of course you have miscarriages, which account for the end of 15-25% of known pregnancies, and many more that are never even recognized to have begun.

    Will Virginia police need to investigate all of these as potential homicides?

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 0

  3. walt moffett says:

    Sure this isn’t the Virginia Attorney’s Full Employment and Relief Act?

    Like or Dislike: Thumb up 4 Thumb down 0

  4. Gustopher says:

    Again, this is what happens when you vote for a Republican. They march lock-step into the crazy, no matter how reasonable any individual Republican seems when campaigning.

    If Republicans actually believed in limited government, I would actually have to think when voting in a general election. It’s really, really sad that the only effort I have to put into my ballot is figuring out which of the candidates for our “non partisan” offices are the Republicans.

    We need two reasonable parties,

    Like or Dislike: Thumb up 10 Thumb down 1

  5. grumpy realist says:

    And what about ectopic implantation?

    I would think that the medical establishment would come down on this like a ton of bricks because even through there’s supposedly no cause of action against the pregnant woman, there’s nothing equivalent protecting anyone else….

    Also, there’s supposedly no cause of action against a woman against “failing to take care”, but what about if a woman can’t carry to term, period? She shoulda known better than to be fat/have diabetes/had German measles….

    Under this law, my mother could have been accused of involuntary manslaughter. Three times.

    Like or Dislike: Thumb up 7 Thumb down 0

  6. steve says:

    It is generally thought that the prevention of implantation is part of how many contraceptives work. If they rejected an amendment to exempt contraceptives, it is clear that they intend to go after them also.

    Steve

    Like or Dislike: Thumb up 10 Thumb down 0

  7. Hey Norm says:

    Republicans are f’ing nuts.
    There’s really nothing else to say about this.

    Like or Dislike: Thumb up 10 Thumb down 1

  8. MikeSJ says:

    I wonder how this would work if this law would be put in practice? I assume IUD’s and the pill would be illegal to sell in Virginia; would it be illegal to be in possession of these? Would a woman be arrested if birth control pills were found in her purse?

    I do know many women use birth control pills for medical reasons other than to prevent pregnancy…would they still be able to get prescriptions filled?

    As a middle of the road person , I find this to be bizarre and borderline crazy, but if that is what the people who vote for Republicans want, well, maybe they should get what they vote for.

    To quote Mencken “…common people know what they want, and deserve to get it good and hard.”

    Like or Dislike: Thumb up 7 Thumb down 0

  9. Janis Gore says:

    @steve: That’s what I always given to understand was the mechanism of the IUD. I’m reading now that the IUD “changes the pathway” for the sperm, complicating conception — which sounds like CYA for the manufacturers, except for the Mirena, which is also hormonal. Never used one of those.

    I’ll go back to my earlier evaluation, that these are “Blow Job Bills,” because we all know we can’t have enough oral and anal sex, masturbation and pornography.

    Like or Dislike: Thumb up 2 Thumb down 0

  10. de stijl says:

    @Janis Gore:

    I’m reading now that the IUD “changes the pathway” for the sperm, complicating conception

    S(p)eed bumps?

    Like or Dislike: Thumb up 1 Thumb down 0

  11. Janis Gore says:

    Maybe. Maybe the little buggers like to follow a road. The Paragard throws a curve. All I know is that the Lippes Loop and the Copper T worked.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. anjin-san says:

    I guess we can add sexually active women to the long, long list of people conservatives hate.

    Like or Dislike: Thumb up 14 Thumb down 0

  13. Ron Beasley says:

    I have been an atheist for most of my 65 years. For most of that I was tolerant of Religion. That began to change about 15 or 20 years ago. A Mormon who rings my doorbell would be advised to have a bodyguard. The theocratic Christianists are a much greater threat to this country than Islam or al-Qaeda. We are becoming a third world country when it comes to science and there can be little doubt that people in high places want this country to be a Theocracy. I can’t really understand the wingnuts dislike of sharia law – it’s pretty much what they want in the US.

    Highly-rated. Helpful or Unhelpful: Thumb up 19 Thumb down 1

  14. steve says:

    Janis- The effects on the uterus and implantation have aways been a bit of a gray area. However, there is enough uncertainty to make a good legal case. I would expect IUDs, Depo provera and oral contraceptives to all be at risk. Barrier methods including spermacides should be good, until parthenogenesis beliefs become prominent.

    Steve

    Like or Dislike: Thumb up 1 Thumb down 0

  15. Brummagem Joe says:

    This is your party Doug (yes I know you are not and never have been a supporter of the Republican party). Look on the bright side, this sort of nonsense along with cameras in the vagina are going ensure VA stays in Democratic hands in the general.LOL.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. Janis Gore says:

    What this all points to is more vasectomies, boys. Good luck.

    Like or Dislike: Thumb up 4 Thumb down 0

  17. de stijl says:

    Cui boner bono?

    Has anyone checked Marshall’s campaign contributions from Trojan?

    Like or Dislike: Thumb up 1 Thumb down 0

  18. JohnMcC says:

    I can imagine a class action suit representing all the stored embryoes in IVF clinics in VA requiring the state to find volunteer or perhaps provide for the payment to surrogate mothers for every one of them. And of course the donors of the sperm & the ovum concerned would become liable for child support. It’s the only way to ‘protect’ those ‘persons’.

    As I have said, the only thing to do is to resolve to never, ever, under any circumstance vote for a Republican if you value your liberty.

    Like or Dislike: Thumb up 3 Thumb down 1

  19. Jim Henley says:

    @Ron Beasley: Nobody likes competition.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. DRS says:

    Nice to see we solved all the economic problems in the country so that politicians can devote their time to this stuff.

    Like or Dislike: Thumb up 3 Thumb down 0

  21. An Interested Party says:

    It’s nice to see the Republicans in the Virginia General Assembly trying to help the President win the state in November…a real spirit of bipartisanship there…

    Like or Dislike: Thumb up 2 Thumb down 0

  22. Ron Beasley says:

    Too many Christians – not enough lions!

    Like or Dislike: Thumb up 3 Thumb down 1

  23. Janis Gore says:

    Nonsense, Ron. They are titillated about talking about sex in the marketplace.

    Like or Dislike: Thumb up 0 Thumb down 1

  24. You know, back with the debt limit fiasco, I thought this was the set-up for an economic issues campaign.

    It’s kind of disturbing (deflating) that instead we’ve got the old go-to issues, the old wedge issues, of abortion and gay marriage pushed to the fore-front.

    Like or Dislike: Thumb up 0 Thumb down 1

  25. Rick DeMent says:

    Hello, My name is Dick Decent Fetal Right’s attorney, I have been assigned to protect the rights of your zygote throughout it’s development until it’s born (when we will stop giving a rat’s ass about it). In the meantime you will have to clear your diet though me as it will effect my client. Also if you are caught smoking, or engaging in any activity that might cause harm to my client you will be charged with child abuse and jailed. And since my client does not have the means yet to support itself financially you are required by law to pay my fee in addition to any health care regime I deem necessary insure the healthy development of my client.

    Like or Dislike: Thumb up 7 Thumb down 1

  26. (Should we take this retreat to wedge issues as an admission that the economy is improving, and is not itself a driver for the 2012 campaign? Or that, for all the trial balloons, no one buys that Obama broke the economy?)

    Like or Dislike: Thumb up 2 Thumb down 0

  27. Rob in CT says:

    @Rick DeMent:

    Well played, sir.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. John D'Geek says:

    Ignoring the rest of this, one quote stuck out (emphasis mine):

    “Should this bill become law, it could have a far-reaching impact on women’s access to health care,” Nash said. “No state, as yet, has adopted anything like this.”

    Utah passed legislation “like this” in the 80′s. Of course, that legislation was specifically designed to protect a woman’s right to carry to term. It was passed in reaction to a case where a pregnant woman and her husband were beaten by one of her former boyfriends — she was specifically beaten to induce an unwanted abortion. The only thing they could get him on was “assault and battery”.

    Now, in the state of Utah forcing an unwanted abortion will get you tried for murder (among other things).

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  29. Phil says:

    Does the legislation say that only a person begins as a fetus?

    Like or Dislike: Thumb up 0 Thumb down 0