GOVERNOR'S RECOMMENDATION

Pursuant to Article V, Section 6, of the Constitution of Virginia, I veto the House Bill 1154.

House Bill 1154 would prohibit doctors from performing a certain late term abortion procedure. Although I firmly support the decision in Roe v. Wade and trust the women of Virginia to make responsible choices affecting their lives and their health care, I am opposed to all post-viability abortions except to protect the mother's life or health. I would sign a bill banning the abortion procedure described in HB 1154 if it contained such exceptions as required under the Constitution. HB 1154 does not.

The U.S. Supreme Court's decision in Stenberg v. Carhart, 530 U.S. 914, 120 Sup. Ct. 2597 (2000), is the law of the land with regard to regulation of late term abortion procedures. HB 1154 fails to satisfy the requirements of Carhart in at least two respects. First, it does not provide an adequate exception to protect the health of the mother in cases of post-viability abortions. The health exception provided in HB 1154 applies "only if, in appropriate medical judgment, [the pregnant woman] suffers from an illness, injury, disease, disorder or other medical condition that so complicates her pregnancy as to necessitate the performance of such a procedure in order to avert her death or avoid a serious risk of substantial and irreversible impairment of a major bodily function."

In other words, in some cases, HB 1154 would not allow a doctor to perform the procedure banned by HB 1154 when it would be safer than other procedures. Any health exception consistent with constitutional requirements must permit women to have access to the safest medical procedures. As explained in Carhart, "[m]edical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases." Carhart, 530 U.S. at 937. A federal court in Ohio recently struck down a statute with language similar to HB 1154 precisely because the so-called health exception was drawn too narrowly. As the court explained, "logic dictates that when a physical health problem requires a woman to undergo a post-viability abortion, she must be permitted to use the least risky procedure . . ." Women's Medical Professional Corporation v. Taft, 162 F. Supp.2d. 929, 961 (S.D. Ohio 2001). I agree with that view.

Second, as passed, HB 1154 lacks an appropriate exemption for certain previability, second trimester procedures. It is settled law that a procedure known as a "D&E" may not be constitutionally banned in the early stages of pregnancy. HB 1154 appears to exempt only some D & E procedures. If HB 1154 is signed into law, some physicians may avoid performing otherwise safe D&E procedures due to fear of prosecution. Hence, I believe HB 1154 risks imposing an undue burden on women seeking previability second trimester abortions.

Although the procedure described in HB 1154 is rarely used, it is deeply troubling to me, as it is to many Virginians. I have said I would sign a bill limiting that procedure if the bill appears to be constitutional. I am not persuaded, however, that HB 1154 satisfies the constitutional requirements articulated by our nation's highest court. I believe that allowing HB 1154 to become law would result in a costly and protracted legal challenge, with no ultimate benefit to the citizens of Virginia. I must, therefore, veto this bill.