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Guest editorial: Virginia's path forward on abortion has to put patient-provider relationships first

Abortion Protest

Protesters voiced their thoughts on abortion outside of Capitol Square in Richmond.

Last month, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization upended federal protections for abortion.

As SCOTUSblog explains, the court ruled the U.S. Constitution “does not confer a right to abortion.” It returned “the authority to regulate abortion” to “the people and their elected representatives.”

Each state now is starting to chart its own course on abortion policy. According to The New York Times’ laws tracker, four — Alabama, Arkansas, Missouri and South Dakota — already have prohibited abortion altogether, with no exceptions for rape or incest.

Other states have affirmed explicit abortion protections in their laws or constitutions. Nevada, for example, requires a voter referendum to implement any changes to its state law.

Virginia falls in the Times’ “uncertain” category: Abortion is “legal for now” but “lawmakers or courts will decide.”

With a split General Assembly by his side, Gov. Glenn Youngkin responded to the Dobbs ruling with his intent to “take every action” to protect life. He also tasked four state legislators to “find areas where we can agree and chart the most successful path forward.”

“We can build a bipartisan consensus on protecting the life of unborn children, especially when they begin to feel pain in the womb, and importantly supporting mothers and families who choose life,” Youngkin said in a statement.

The governor supports a ban on most abortions after 15 weeks. But the meaning of “consensus” or “success” in a legislative chamber is different than in an exam room. Virginia’s path forward on abortion has to put patient-provider relationships first.

For nearly 50 years, Roe v. Wade applied the 14th Amendment “right to privacy” to women’s abortion decisions. Per the Oyez case summary page:

“In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision.”

“In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health.”

“In the third trimester, once the fetus reaches the point of ‘viability,’ a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”

Zero in on the “attending physician” segment. It’s unreasonable to think voters and lawmakers (and even judges) alone possess the institutional knowledge to determine how to regulate abortion.

Patients and physicians are most qualified because trust and ethics are at the core of their highly individualized health care relationships. The American Medical Association’s Code of Medical Ethics speaks to this factor:

“The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering. The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.”

Abortion policy is no different. It should be about patients’ welfare, and physicians — not lawmakers or courts — are the best partners in that process. Before the governor and the General Assembly advance any post-Roe abortion proposals, they should fully collaborate with Virginia providers to understand all patient scenarios and assess the ground-level impacts.

National data from the Centers for Disease Control and Prevention found that in 2019, 92.7% of abortions were performed at 13 weeks or earlier, which falls within Youngkin’s 15-week proposal. But the most harmful outcome of the Supreme Court’s decision is the wide open door to outright criminalization of abortion at the state level, at all points in a woman’s pregnancy.

Fear does not belong in any exam room in the commonwealth or elsewhere. Patients face incredibly difficult choices and physicians bear the tremendous responsibility of delivering lifesaving care.

Kaiser Family Foundation data shows Virginia reported more than 15,000 legal abortions in 2019. Say 7.3% of those procedures were performed after the 15-week mark — more than 1,100 women’s private health care decisions could be affected by Youngkin’s proposal.

Lt. Gov. Winsome Earle-Sears — the first woman in the commonwealth’s No. 2 post, the first woman of color to hold statewide office and a mom of three — offered a motherly, nuanced perspective.

“I believe the baby in the womb wants to live,” Sears said in a recent interview with WRIC-TV. “Now we have to make sure that we take care of the life and the health of the mother and, of course, rape and incest. But at the same time, I thought, this is excellent. We get an opportunity to talk about this some more.”

We must talk about this some more. The Supreme Court’s decision is in, but states’ rights do not automatically equate to better health outcomes. If the commonwealth is to protect life, build consensus and create a successful path forward, it has to shape policy that trusts patients and providers to build their own relationships — and make their own choices.

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