Virginia prosecutor puts Glenn Youngkin on notice, vowing to defy any future anti-abortion laws

If the U.S. Supreme Court overturns Roe v. Wade — which appears likely, given Justice Samuel Alito’s leaked majority draft opinion in Dobbs v. Jackson Women's Health Organization — some of the most intense battles over abortion rights will occur in swing states like Pennsylvania, Arizona, Nevada and Virginia. Democrat Steve Descano offers a preview of that intensity in a no-nonsense op-ed published by the New York Times on May 31.

Descano, the head prosecutor for Fairfax County, Virginia, puts Republican Gov. Glenn Youngkin on notice in his op-ed — emphatically vowing to defy any anti-abortion laws that may be passed in Virginia in the future.

“If the Supreme Court overturns Roe v. Wade, the rights of thousands of Virginian women will be thrown into question,” Descano writes. “While the commonwealth does not have an abortion ban on the books, our governor has said that he is ‘staunchly, unabashedly’ against abortion and fully committed to ‘going on the offense’ against abortion rights in our legislature. Should Roe fall, he could well strip women of their reproductive rights — and go after thousands more who flock to the state whenever neighboring jurisdictions clamp down on abortion access.”

Once a deep red state, Virginia has evolved into what is arguably the best state for Democrats in the South. A Republican hasn’t carried Virginia in a presidential election since George W. Bush in 2004,and both of Virginia’s U.S. senators are Democrats: Sen. Mark Warner and Sen. Tim Kaine. But Virginia Democrats suffered a setback when, in 2021, Youngkin narrowly defeated former Gov. Terry McAuliffe.

In the Virginia General Assembly, Democrats have a narrow majority in the State Senate, while Republicans have a narrow majority in the Virginia House of Delegates — which they recaptured in 2021. Virginia is neither deep blue like California and Massachusetts nor deep red like Wyoming, Idaho or Mississippi, and it’s hard to predict whether abortion will be legal or illegal in Virginia five years from now if Roe v. Wade is overturned.

Youngkin avoided talking about abortion during his 2021 campaign, as he knew it would alienate a lot of swing voters and independents. But if Youngkin does sign an anti-abortion bill into law at some point in the future, Descano obviously has no intention of helping him enforce it.

“When the Court’s draft decision overturning Roe v. Wade was leaked earlier this month,” Descano writes, “I committed to never prosecute a woman for making her own health care decisions. That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion, or for being suspected of inducing one.”

Descano urges other prosecutors to defy anti-abortion laws in their states.

“We local prosecutors are uniquely positioned to safeguard the rights of the women we represent, by virtue of the discretion the legal system affords us,” Descano notes. “Every day, we decide where to deploy our limited resources, making judgment calls about which cases are consistent with the values and priorities of the communities we represent, which plea deals to pursue and which crimes merit our attention. When it comes to charging individuals, we are the arbiters of the law.”

Descano continues, “For hundreds of thousands of American women, access to an abortion soon will depend not only on which state they live in, but also, on how hardline their local prosecutor is. That’s why I hope prosecutors across the country will join me in choosing to lead on behalf of the women we represent.”

Descano emphasizes that local prosecutors have “prosecutorial discretion,” and he urges them to use it if Roe v. Wade is overturned and abortion is outlawed in their states.

“Currently, 13 states have ‘trigger laws’ that will severely restrict or ban abortion the day Roe falls,” Descano writes. “Since the Supreme Court’s draft opinion leaked to the press, Republican officials in at least eight states have also called for special legislative sessions to introduce new abortion restrictions. But by committing to not prosecuting women for having abortions, we might succeed in preventing the irreversible expansion of a deeply intrusive enforcement dragnet — and, as we did with marijuana legalization, maybe even motivate legislators to take the necessary action to safeguard Americans’ rights.”