"David Toscano is in for a change of pace. Until now, the former City mayor has mastered the art of compromise in Charlottesville, Virginia’s haven for left-leaning, latté-drinking, Volvo-driving Democratic voters. This week, however, the new 57th District delegate is one of 140 legislators in Virginia’s General Assembly. While the General Assembly is in session for two months that began on January 11, Toscano will be doing business with the state’s powerful conservative faction—a group that sees compromise as weakness and thinks Charlottesville might as well be San Francisco.

Nowhere do the values of city voters conflict more deeply with state conservatives than in the arena of reproductive rights. As in recent years, 2006 will bring another flurry of bills [see sidebar, below] that strive to limit women’s access to abortion, birth control and scientific information about sex.

“There’s going to be a lot of them this year,” Toscano says. As a member of the courts committee, Toscano will have more influence on those bills than most freshman delegates. “You don’t want to pre-judge any bill, but my general approach is that abortion ought to be safe, legal and used rarely.” Most votes on abortion bills follow party lines, and, as Toscano says, “right now the Republicans have the numbers.”

Meanwhile, much of the focus on reproductive rights is aimed at the Supreme Court. Currently, nominee Samuel Alito—who has a history of supporting abortion restrictions and questioning whether abortion should be legal at all—seems to be cruising through his hearings. Along with the ascension of another conservative, John Roberts, to the position of Supreme Court chief justice, the Alito hearings have prompted much speculation about whether conservatives could finally overturn the Court’s 1973 decision in Roe v. Wade that protects a woman’s right to abortion.

Alito’s confirmation hearings currently top the headlines, even though the really important battles over reproductive freedom are being fought in statehouses like the General Assembly in Richmond. Supreme Court justices can remove federal protections for reproductive rights. If that happens, it will be up to the General Assembly to set Virginia’s policy on abortion rights.

“There’s a lot of concern about the Supreme Court,” says Ann O’Hanlon, executive director of NARAL Pro-Choice Virginia. “A lot of people put their attention on the federal stage when it comes to reproductive rights, but the real drama is happening in the states.

“The states are the laboratories for new restrictions,” O’Hanlon says. “The Supreme Court tells the states how far they can go. It’s your home state’s laws that affect what you can and cannot do.”

For women in Virginia, there are a lot of “cannots” in the works.

Sideshow Bob and Virginia’s right wing

Theoretically, the Supreme Court’s decision in Roe v. Wade guarantees that a woman and her doctor have the right to make reproductive decisions without the government sticking its nose in their business. In reality, though, this year there are a raft of bills in the Virginia legislature designed to make it harder than ever to actually get an abortion.

“There are people who think they get elected to put in those kinds of bills,” says Sen. Creigh Deeds (D-Charlottesville). “They talk about limited government, but they want to impose government on people’s lives.”

While Republicans usually speak of their desire for “less government,” it is two delegates from the GOP who feel that women’s lives need more government. This year, two NoVA legislators—Del. Robert Marshall (R-Manassas) and Del. Scott Lingamfelter (R-Woodbridge)—introduced a total of seven anti-choice bills, with perhaps more to come as the session continues. Neither Marshall nor Lingamfelter returned calls to C-Ville.

Over the past decade, Marshall, a fundamentalist Catholic, has been the leading culture warrior in the General Assembly. His repeated attempts to legislate Christian morality in the face of more pressing issues never fails to draw media attention, earning Marshall the nickname “Sideshow Bob.”

Former Charlottesville Delegate Mitch Van Yahres, a 20-year veteran of the General Assembly, says Marshall is a “very bright guy.”

“He gets an awful lot of attention,” says Van Yahres. “And he likes it.”

Here’s the kind of guy Marshall is: He is a fervent pro-life activist who, according to published reports, drives a decommissioned police car because he enjoys seeing other drivers hit their brakes. He has been quoted claiming that condoms have “produced the current epidemic of sexually transmitted diseases.” He supports criminalizing homosexuality, a practice he suggests has “killed 450,000 Americans and will kill at least 1 million more in just a few years.” For a lawmaker so interested in morality, Marshall doesn’t always seem to get his facts straight.

So far this year, Marshall has introduced four bills related to culture issues. He has two bills designed to stop unmarried women from receiving artificial insemination. He wrote two other bills that require abortion clinics to be built like hospitals and require Virginia’s abortion doctors to reside in Virginia and have admitting privileges at a Virginia hospital.

On their face, Marshall’s abortion bills seem reasonable. According to NARAL’s O’Hanlon, however, they are designed to shut down clinics, especially in poor and rural areas. “These laws would hurt the poor, rural, minority women—the women at the bottom of the ladder—most of all,” O’Hanlon says.

Lingamfelter “is a different character than Bob,” says Van Yahres. “He’s more positive. He’s very positive about his beliefs…. I just get a different kind of feeling from him.” This year, Lingamfelter is pushing bills that would require sex-education classes to emphasize abstinence and the “unlawfulness of sexual relations between unmarried persons.”

Lingamfelter’s House Bill 173 would require government employees to notify a teenage girl’s parents if she received any service relating to sexually transmitted disease, pregnancy or emergency contraception—a bill that critics say would discourage young women from seeking help.

Usually, bills like this are killed in the moderate Senate Health and Welfare Committee, if not the much more conservative House of Delegates. “They still put these bills in,” says Van Yahres. “They’re very emotional issues, they bring out a lot of people. Unfortunately, they take up a lot of time.”

Chipping away at Roe

In Virginia and other states, the rights enshrined in Roe are under attack. To understand what Christian fundamentalists like Marshall and Lingamfelter are up to, we have to go all the way back to Roe v. Wade.

In that landmark decision, seven of nine justices affirmed that a citizen’s right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy, and that the Constitution’s right to life and liberty does not include the unborn. Any law attempting to restrict abortion, the court said, would be subject to a “strict scrutiny,” in effect placing women’s reproductive choice alongside such basic American rights as freedom of speech and freedom of religion.

Conservative backlash began immediately after the Roe decision, as right-wing politicians introduced the phrase “judicial activism” to attack what they claimed was the Supreme Court’s failure to adhere to the “original intent” of the framers. State legislatures soon began passing laws with the goal of finding exceptions to Roe, or to open up new legal areas in which abortion could be successfully restricted [see sidebar this page].

The backlash reached its peak during the 12 years when Ronald Reagan and George Bush sat in the Oval Office. According to the Center for Reproductive Rights, every year since 1983 the U.S. Solicitor General urged the Supreme Court, on behalf of the federal government, to overturn Roe. A person’s thoughts on Roe became a “litmus test” for justices nominated by Reagan and Bush. During this 12-year period, five justices—Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter and Clarence Thomas—were appointed. Not one of these five supported the “strict scrutiny” standard of review established by Roe; and, in fact, this more conservative court significantly weakened federal protection for reproductive rights.

This shift in the politics of the Supreme Court had its most dramatic effect in the court’s ruling on the landmark 1992 case Planned Parenthood v. Casey. In that decision, the Supreme Court abandoned the “strict scrutiny” clause of Roe and started to weigh abortion restrictions by determining whether a particular law creates an “undue burden” for a woman seeking an abortion. For example, in Casey the court declared a Pennsylvania law unconstitutional because it would have required married women to obtain their husband’s permission before receiving an abortion—that, in the court’s opinion, would have been an “undue burden.” (Then a federal judge, current nominee Alito argued that a woman should need her husband’s permission in this case.)

This new clause raised an obvious question. What, exactly, constitutes an “undue burden”? State legislatures began testing the Supreme Court with a new series of restrictions, with Bob Marshall and his right-wing cohorts in the Virginia General Assembly concocting some of the most creative measures to keep women from exercising what is still a Constitutional right to abortion.

Can Republicans read tea leaves?

The 33-year argument over abortion that began with Roe v. Wade is now approaching a turning point.

With Samuel Alito apparently cruising to confirmation, the pro-life camp is hoping for radical new restrictions on abortions in America, while Democrats hope that voters will soon get sick and tired of arguing over divisive social issues.

That optimism seemed to be affirmed on Tuesday, January 10, when Democrat Sherry Valentine defeated Republican Michael Harrington in a special election to replace Lynchburg Delegate Preston Bryant, a Republican leaving the House after 10 years to be Tim Kaine’s secretary of natural resources. Valentine’s victory comes at the end of an election season when Democrats made several important gains in the General Assembly—arch-conservatives Dick Black and Brad Marrs lost their seats to Democrats.

Although Democrats still face a 57-40 Republican majority in the House (Independents hold three seats), by attaining 40 seats Democrats are entitled to more seats on House committees. “It’s a potentially very significant change,” says Planned Parenthood Director David Nova.

Perhaps most importantly for Democrats, Tim Kaine won the governor’s race by a 52 percent to 46 percent margin over Republican Jerry Kilgore, an avowed anti-choice conservative. Van Yahres downplays the significance of Kaine’s victory
as an indicator of a voter backlash against the right wing, but Nova is feeling optimistic.

“This is going to be a very interesting session to watch,” says Nova. He says that all the attention on abortion and the Supreme Court could prompt apathetic voters to wake up and vote out the right-wingers, given that most research indicates a majority of Americans support a woman’s right to choose abortion, at least in some cases.

“It’s easy to talk about [overturning Roe] when it doesn’t look like it’s going to happen,” says Nova. “Now there’s a potential backlash. That can’t help but weigh on the mind of a legislator who might not want to take an extreme position.” (John Borgmeyer, C-Ville Weekly, January 17, 2006)