Rather than sign or veto a legislature-approved right-to-contraception proposal, Gov. Glenn Youngkin offered a substitute that the bill’s patrons and legal experts say is not as strong.
The legislature returns Wednesday to take up Youngkin’s proposed amendments to 116 bills as well as his 153 vetoes.
The proposals’ patrons — Sen. Ghazala Hashmi, D-Chesterfield, and Del. Cia Price, D-Newport News — say the bill matters because of the shifting national landscape surrounding reproductive health care laws.
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Their proposal had more teeth than the substitute that Youngkin is offering. Hashmi and Price’s bills said health care providers have a right to prescribe contraceptives and that people have a right to obtain them, offered definitions of forms of contraception, and outlined legal actions that could be taken if rights were infringed.
Youngkin’s substitute, which is much shorter, reinforces U.S. Supreme Court rulings that allow for contraception.
It offers that “it shall be the public policy of the Commonwealth, independently of the requirements of the Constitution of the United States, that individuals possess the right to access contraception as set forth in Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972).”
University of Richmond law professor Carl Tobias said: “The version of the legislation that the House and Senate passed is clearly stronger, more comprehensive and provides greater protection than the Youngkin substitute.”
This is because the measures from Hashmi and Price would support contraception access regardless of any potential actions the Supreme Court of the United States might take on federal protections.
Hashmi called Youngkin’s substitute “not useful” and said it “gutted” the bill that the legislature passed.
In June 2022, when the Supreme Court overturned Roe v. Wade, the nearly 50-year-old ruling that had federally protected abortion access, reproductive rights advocates worried that previous contraception rulings might be next.
That’s because Justice Clarence Thomas opined that the court could reconsider other settled cases that emanated from the due process clause of the 14th Amendment.
A 1965 case, Griswold v. Connecticut, applied the clause to married couples seeking to use contraception. Seven years later Eisenstadt v. Baird extended that to unmarried people.
Thomas asserted in 2022 that the due process clause “at most guarantees process” and “does not secure any substantive rights.”
Price said the bills were “in direct response to the clearly stated intent to come after the right to contraception.”
While no federal action to block contraception has been taken, some state legislatures have attempted to block funding for birth control measures like intrauterine devices or emergency contraception that is usually sold as Plan B. Additionally, in some states, GOP governors or gubernatorial candidates have not ruled out seeking restrictions or prohibitions on contraceptives.
With Virginia’s status as the least restrictive Southern state when it comes to abortion access, legal historian Lauren MacIvor Thompson of the Georgia State University School of Law said it’s not surprising Virginia may be among the first states to try to formally protect contraception.
She added that while Youngkin’s substitute appears to support contraception access, it may also be a nod to people who see some forms of contraception as akin to abortion.
While methods like condoms prevent an egg from being fertilized in the first place, measures like intrauterine devices create an inhospitable environment for an egg — fertilized or not — to implant in. Emergency contraception like Plan B delays ovulation and is sometimes used when someone has unprotected sex, missed a hormonal birth control pill, or was sexually assaulted. That delayed ovulation can mean preventing sperm from fertilizing an egg since conception does not always occur the moment someone has had sex.
For abortion opponents who believe life begins at the moment an egg is fertilized, any method of contraception is controversial.
While much of the debate around reproductive health care in the past two years has centered around abortion access, debates have emerged in state legislatures and in courts surrounding things like contraception and in vitro fertilization.
“By making (the substitute) short and non-specific in this particular climate we are in, it allows for groups who want to see these types of contraceptives taken off the market feel like they can pursue that,” Thompson said.
It would take awhile for the Supreme Court to potentially reverse its rulings on either the Griswold or Eisenstadt cases, said legal historian Mary Ziegler of the University of California, Davis School of Law.
Legal challenges that come before the Supreme Court must first have worked their way through a series of lower courts.
A sooner tactic could involve “states trying to ban the birth control pill by calling it an ‘abortifacient’ than to see states say they want to ban contraceptives outright in the short term,” Ziegler said.
Virginia’s Democratic-controlled legislature is unlikely to accept Youngkin’s substitute when it reconvenes Wednesday.
Hashmi said she remains aware of the regional and national spotlight on Virginia when it comes to reproductive health care laws.
“People are watching what Virginia is going to do,” she said. “Everyone knows how really critical this is.”