MATTHEW CLARK, ACLJ
The pro-abortion Left has unleashed a new assault on the lives of babies. They’ve fully embraced abortion on demand at any point in pregnancy and possibly even after birth. Their evil is being enacted into law and exposed all at the same time.
On the heels of New York passing one of the most barbaric abortion laws in U.S. history, allowing abortions up until the moment of birth, a similar bill in Virginia could be even more devastating.
By now you may have seen the video of the sponsor of the bill – HR 2491 – admitting publicly that that the bill would allow abortions while a mother is in labor:
[Del. Gilbert:] I’m talking about your bill. How late in the third trimester could a physician perform an abortion if he indicated it would impair the mental health of the woman? . . .
[Del.] Tran: Through the third trimester. The third trimester goes all the way up to 40 weeks.
Gilbert: Okay. But to the end of the third trimester?
Tran: Yep. I don’t think we have a limit in the bill.
Gilbert: Where it’s obvious a woman is about to give birth, that she has physical signs that she is about to give birth. Would that be a point at which she could still request an abortion if she was so certified? She’s dilating. . . .
Tran: My bill would allow that, yes.
Then even more shocking was the video of Virginia Governor Ralph Northam advocating infanticide. Asked about whether he could explain the bill and whether it would allow third trimester abortions while a woman is in labor, Gov. Northam – a pediatric doctor – stated:
When we talk about third trimester abortions . . . If a mother is in labor, I can tell you exactly what would happen, 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 mother.
The baby would be born, and “then:” there would be “a discussion” about whether the baby should live? There is a word for that. It’s called infanticide.
In light of the backlash Gov. Northam (rightfully) received over his comments, his spokesman issued the following statement: “No woman seeks a third trimester abortion except in the case of tragic or difficult circumstances, such as a nonviable pregnancy or in the event of severe fetal abnormalities, and the governor’s comments were limited to the actions physicians would take in the event that a woman in those circumstances went into labor.”
Hold up. Say what?!
The first statement is flat out false. For starters, one of the authors of a Guttmacher Institute study on abortion concluded that “that abortions for fetal anomaly ‘make up a small minority of later abortions.’” The Guttmacher Institute is the abortion industry’s own research arm. The study further concluded that “[i]n many ways, women who had later abortions were similar to those who obtained first-trimester procedures.”
Like I said, the Northam team’s first claim is just false.
But even still, Gov. Northam actually just doubled down on infanticide – just for babies with disabilities (“abnormalities”). That’s sick.
But a deeper analysis of the bill itself actually tracks with Gov. Northam’s infanticide comments.
First, Delegate Tran’s “Repeal Act” would repeal numerous restrictions on abortion in Virginia.
Among other things, it would remove the requirement of an ultrasound before an abortion, a waiting period, and the requirement that 2nd trimester abortions be performed in a hospital. It removes civil penalties for violations of abortion laws.
It removes the requirement that two additional doctors certify that there is a need for a third trimester abortion. Even more shocking, it removes that requirement that a finding must be made that not performing the late-term abortion would “substantially and irremediably” impair the mental or physical health of the woman. In other words, under current law, there must be no other way (“irremediably”) to protect a woman’s mental health.
Mental health has been repeatedly found to include just about any reason: financial strain, stress, the inconvenience of caring for an infant, etc. If the new bill passed, it would essentially allow late-term abortions for any reason whatsoever, without any limitation.
But it gets worse. The following legally required informed consent protections would be completely removed from Virginia law:
“Informed written consent” means the knowing and voluntary written consent to abortion by a pregnant woman of any age, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion by the physician who is to perform the abortion or his agent. The basic information to effect such consent, as required by this subsection, shall be provided by telephone or in person to the woman at least 24 hours before the abortion by the physician who is to perform the abortion, by a referring physician, or by a licensed professional or practical nurse working under the direct supervision of either the physician who is to perform the abortion or the referring physician . . . . This basic information shall include:
1. A full, reasonable and comprehensible medical explanation of the nature, benefits, and risks of and alternatives to the proposed procedures or protocols to be followed in her particular case;
2. An instruction that the woman may withdraw her consent at any time prior to the performance of the procedure;
3. An offer for the woman to speak with the physician who is to perform the abortion so that he may answer any questions that the woman may have and provide further information concerning the procedures and protocols . . . .
These protections for women would just be ripped right out of the law.
What possible reason could there be to remove these patient’s rights? There would be no ban on “undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion by the physician who is to perform the abortion.” No requirement that benefits and risks be explained before an abortion. No instruction that she can withdraw her consent – a provision that could also be read to say that the patient doesn’t have the right to withdraw consent. No requirement that a doctor answer the woman’s questions before an abortion.
This is not about protecting women; this is just about ensuring more abortions. More abortions equal more money for the abortion industry and in turn more political donations from the abortion lobby back to the Left.
And now for the most alarming change of all. One word.
Bear with me here because this gets legally complicated, but you must understand it to understand what this law would allow.
Under current law, there is a requirement that life support “must” be given to a baby born alive after an attempted late-term abortion.
Here is the simple, straightforward requirement: “Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability.”
The baby’s life must be saved. Lifesaving care is mandatory. Period.
The new bill changed “must” to “shall”. They’re the same, right? Synonyms.
This is where the deception is so devious. In the law, they are not the same. I know how absurd that sounds (but what did you expect when lawyers get involved).
As one government agency adeptly explained:
We call “must” and “must not” words of obligation. “Must” is the only word that imposes a legal obligation on your readers to tell them something is mandatory. . . . Who says so and why?
Nearly every jurisdiction has held that the word “shall” is confusing because it can also mean “may, will or must.” Legal reference books like the Federal Rules of Civil Procedure no longer use the word “shall.” Even the Supreme Court ruled that when the word “shall” appears in statutes, it means “may.”
Bryan Garner, the legal writing scholar and editor of Black’s Law Dictionary wrote that “In most legal instruments, shall violates the presumption of consistency…which is why shall is among the most heavily litigated words in the English language.”
So this bill is intentionally inserting ambiguity into the straightforward requirement to give lifesaving care to a baby born alive after an attempted abortion. But it gets even worse.
Under the basic rules of statutory construction, a legislative change in wording is presumed to have a different meaning. It goes like this. If the legislature changed one word in a law to a different word, they must have meant it to have a different meaning. Thus, the word “shall” in this bill can’t possibly mean “must” because that’s the word it replaced. Thus, it must mean something different.
As we can see above, it is very possible the word “shall” could be interpreted to mean “may.” The doctor may give lifesaving care to the baby.
Now go back to Gov. Northam’s words, “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 mother.” He’s actually perfectly describing what the bill would do. The result of this law would be that lifesaving care would have to be a “discussion,” because it would no longer be mandatory, at least that’s what the abortionist’s legal argument would be. The baby – born alive – could be allowed to die right then and there – and possibly even be killed.
That’s infanticide. That’s what the Governor said the bill would do. That’s what the sponsor who wrote that one-word-change into the bill clearly intended. That’s what the plain reading of the bill would result in.
This is an intentional attempt to distort and deceive, to put forward a bill that would open the door to not only abortions up until the moment of birth but thereafter as well. This is what the pro-abortion Left want.
This is where New York is heading, and this could be where Virginia and other states are heading if we don’t speak out.
At the ACLJ, we’re fighting back against these barbaric abortion laws. We’re digging into them. We’re laying out the law in a way you can understand, so you can help us fight back. And we’re preparing to take action.
The Repeal Act in Virginia has been tabled – for now – in the House Courts of Justice Committee, but it could be revived. And with a razor thin conservative majority in both the House of Delegates and the Senate (both of which are up for election later this year), Virginia could be in the same position as New York in a year’s time if nothing changes.
Matthew Clark is Senior Counsel for Digital Advocacy with the American Center for Law and Justice. Matt has served as Judicial Law Clerk for the Honorable Walter S. Felton, Jr., Chief Judge of the Court of Appeals of Virginia. He earned a Juris Doctor and Master’s Degree in Public Policy from Regent University where he served as the Founder and Editor-in-Chief of the Regent Journal of Law and Public Policy. He also currently serves as a Senior Research Associate for the Centre for the Study of Law & Public Policy at Oxford and as a Contributing Editor at RedState.com.