Virginia’s new Republican AG urges Supreme Court to overturn Roe v. Wade

Virginia’s newly elected Republican attorney general has urged the Supreme Court to overrule Roe v. Wade and hand abortion authority over to the states, reversing the commonwealth’s legal position in a landmark challenge now pending before the court.

Under the state’s previously Democratic-led administration, Virginia joined 21 other states in urging the justices to invalidate Mississippi’s 15-week abortion ban and reaffirm the core holding of the court’s 1973 decision in Roe.

But in his first week on the job after defeating the state’s Democratic incumbent in a November election, Virginia’s new attorney general, Jason Miyares (R), announced a dramatic shift in course.

“The [new] Attorney General has reconsidered Virginia’s position in this case,” Miyares told the justices in a letter Friday. “Virginia is now of the view that the Constitution is silent on the question of abortion, and that it is therefore up to the people in the several states to determine the legal status and regulatory treatment of abortion.” 

Roe prohibits states from banning abortion before fetal viability, which occurs around 24 weeks.  A decision over the fate of Mississippi’s 15-week ban, which directly clashes with Roe’s central holding and the nearly five decades of Supreme Court precedent upholding it, is expected by June.

During a tense hearing in the case last month, the justices seemed prepared to roll back the legal regime that emerged from Roe in a manner that may permit states to place new limits on abortion.  

Justice Brett Kavanaugh, who is seen as a key vote in the case, seemed focused on Mississippi’s argument that abortion is a matter best left to the states. More than once, Kavanaugh asked why the court is the best-suited branch of government to balance the interests of pregnant women seeking abortion against the interest of fetal life.

“Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people, being able to resolve this?” he asked an attorney for the government. “And there’ll be different answers in Mississippi than New York, different answers in Alabama than California, because they’re two different interests at stake and the people in those states might value those interests somewhat differently.” 

In his letter to the justices last week, Miyares aligned himself with the legal position embraced by 19 Republican attorneys general and a dozen red-state governors across the country in calling for a return to state control of abortion.  

“It is Virginia’s position that the court’s decisions in Roe and Casey were wrongly decided,” he wrote, referring also to the 1992 decision in Planned Parenthood v. Casey that barred states from placing an undue burden on abortion access before viability. “This court should restore judicial neutrality to the abortion debate by permitting the people of the several states to resolve these questions for themselves.” 

Advocates say abortion access would be sharply curtailed across the country if the Supreme Court undermined Roe. Such a ruling, they warn, would have a cascading effect in dozens of states, with the heaviest burdens falling on the American South and Midwest, which could see severe restrictions and even outright bans placed on the procedure.

Earlier this month, a Virginia lawmaker introduced a bill that would ban abortion after 20 weeks, about a month earlier than federal protections under Roe allow. That legislative effort currently faces an uphill battle in the Virginia legislature, where Democrats control one of the two chambers by a razor-thin margin.

But it may also foreshadow a shifting landscape over abortion following the November election of Republican Gov. Glenn Youngkin, who opposes abortion. Experts say that if the GOP takes over both legislative chambers, there is a decent chance of restrictive abortion bills being signed into law.

“I think that the new 20-week bill is the most likely vehicle now,” said Carl Tobias, a law professor at the University of Richmond. “However, stricter measures could still be introduced and possibly passed.”

Whether those measures would be deemed constitutional will likely depend on how the Supreme Court rules in the Mississippi case this summer.