Virginia Voters to Decide Reproductive Freedom Amendment in November

Editor’s Note: Virginia voters will consider three proposed amendments to the Virginia Constitution on the Nov. 3 ballot. This is the first in a series examining each proposed amendment.  We will provide additional information on each question, including what the proposed constitutional language would change and the arguments being made by supporters and opponents, to help voters understand the issues before casting their ballots.

Virginia voters will decide in November whether to add a fundamental right to reproductive freedom to the state Constitution, a proposal that would protect a range of reproductive health-care decisions while placing constitutional limits on the Commonwealth’s ability to regulate them.

Proposed Constitutional Amendment Question 1 will ask voters whether the Virginia Constitution should be amended to protect personal decisions involving prenatal care, childbirth, postpartum care, contraception, abortion, miscarriage management and fertility care.

The proposal has generated sharply different arguments from supporters and opponents over both the need for constitutional protection and the extent to which the amendment could affect existing and future Virginia laws.

At the center of the debate is a relatively straightforward question with potentially far-reaching consequences: Should reproductive freedom be recognized as a fundamental right under the Virginia Constitution?

What the Amendment Would Do

Virginia’s Constitution currently does not explicitly establish a right to reproductive freedom or specifically protect or prohibit particular reproductive health-care procedures.

Question 1 would change that by adding a new Section 11-A to the Virginia Bill of Rights.

The proposed section states that “every individual has the fundamental right to reproductive freedom,” including decisions involving prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care.

The amendment would prohibit the Commonwealth from directly or indirectly denying, burdening, or infringing that right unless the restriction is justified by a compelling state interest and accomplished through the least restrictive means.

The amendment further defines a compelling state interest as one serving the limited purpose of maintaining or improving the health of the person seeking care, consistent with accepted clinical standards and evidence-based medicine, without infringing on that person’s autonomous decision-making.

That language is significant because placing a right in the state Constitution provides stronger protection than simply establishing the right through a state statute. Future General Assemblies could not eliminate a constitutional right simply by passing a new law.

What About Abortion in the Third Trimester?

The proposal specifically addresses abortion during the third trimester.

Under the amendment, Virginia could regulate the provision of third-trimester abortions.

However, the Commonwealth could not prohibit an abortion when a physician determines it is medically indicated to protect the life or physical or mental health of the pregnant individual. An abortion also could not be prohibited when a physician determines that the fetus is not viable.

Current Virginia law also places restrictions on abortions later in pregnancy, but the existing statutory requirements differ from the language proposed for the Constitution.

That distinction is one of the important considerations before voters. The amendment would not simply preserve current abortion law; it would establish a constitutional standard against which present and future laws could be evaluated.

Protection From Government Penalties

The amendment also would prohibit Virginia from penalizing, prosecuting, or taking other adverse action against an individual for exercising the protected reproductive right or because of pregnancy outcomes, including miscarriage, stillbirth, or abortion.

It would additionally prohibit the Commonwealth from penalizing someone for aiding or assisting another person in exercising the right to reproductive freedom when that person voluntarily consents.

The Commonwealth also would be prohibited from discriminating in its protection or enforcement of the constitutional right.

What Supporters Say

Supporters argue that reproductive decisions should belong primarily to patients rather than government officials and that constitutional protection is necessary because reproductive rights are not currently expressly guaranteed by the Virginia Constitution.

They point out that the amendment extends beyond abortion. It expressly includes contraception, fertility care, miscarriage management, prenatal care, childbirth, and postpartum care.

Supporters also argue that placing these protections in the Constitution would provide greater stability. Rather than reproductive policy changing substantially depending upon which political party controls the General Assembly and governor’s office, government restrictions would have to comply with the constitutional standard.

They contend that patients and medical providers should be able to make reproductive health-care decisions without fear of inappropriate government interference or punishment.

Supporters also emphasize that the amendment does not prohibit all regulation of abortion. Its language specifically allows the Commonwealth to regulate abortion during the third trimester, subject to its exceptions concerning the patient’s health and fetal viability.

What Opponents Say

Opponents argue that the amendment goes considerably further than simply protecting access to contraception or preserving Virginia’s current abortion laws.

Their concerns focus in part on the breadth of phrases such as “every individual,” “fundamental right,” “fertility care,” and the requirement that government restrictions satisfy the amendment’s compelling-state-interest standard.

Opponents contend that those provisions could result in challenges to existing Virginia laws governing reproductive care.

One area of concern involves minors.

Virginia currently generally requires an unemancipated minor seeking an abortion to receive authorization from an adult specified by law, although judicial bypass and certain exceptions are available.

The proposed amendment does not specifically address parental consent. It instead grants the protected right to “every individual” and restricts the Commonwealth’s ability to burden that right.

Opponents argue that this could place existing parental involvement requirements in jeopardy.

The amendment does not, however, expressly repeal Virginia’s parental-consent law. Whether that or another existing law would remain enforceable would depend on whether it satisfies the new constitutional requirements, potentially leaving some questions for courts to resolve.

Opponents have also raised concerns about whether the term “fertility care” could eventually receive interpretations extending beyond treatments commonly associated with infertility and assisted reproduction.

The amendment itself does not mention gender-transition procedures; however, claims that it would necessarily create constitutional protection for such procedures are arguments about possible future legal interpretation rather than anything explicitly contained in the amendment.

Opponents also argue that the amendment could make Virginia a destination for people traveling from states with more restrictive abortion laws and could limit the ability of future Virginia lawmakers to enact additional abortion restrictions.

Again, those are predictions about the amendment’s potential effects rather than provisions expressly contained in its text.

What the Amendment Does Not Say

Some of the political debate surrounding Question 1 concerns consequences not explicitly addressed in the amendment.

The proposal does not explicitly address parental notification or consent requirements by name.

It does not mention gender-transition treatment.

It does not specifically authorize abortion based upon fetal sex or particular fetal diagnoses.

Nor does it create a new criminal offense against individuals who violate the reproductive-freedom provision.

Those issues may nevertheless become part of arguments over how broadly courts could interpret the constitutional language, particularly because the amendment establishes a fundamental right and a demanding standard for government restrictions.

That distinction is important for voters: There is a difference between what the amendment expressly provides and what either side predicts could result from its adoption.

A Constitutional Question, Not Just an Abortion Question

Although abortion has become the dominant issue surrounding Question 1, voters are being asked to decide something broader than whether they support or oppose abortion.

The proposal would place reproductive freedom within Virginia’s Bill of Rights.

That would elevate the covered decisions from matters primarily governed through legislation to matters receiving explicit protection under the state Constitution.

That distinction also affects future lawmakers.

If voters reject the amendment, Virginia’s existing Constitution would remain unchanged on reproductive freedom, and reproductive health laws would continue to be established through the legislative process, subject to other applicable constitutional requirements.

If voters approve the amendment, future state laws regulating the protected reproductive decisions would have to comply with the new constitutional provisions.

What a Yes or No Vote Means

A YES vote supports adding Section 11-A to the Virginia Constitution, establishing a fundamental right to reproductive freedom covering the areas listed in the amendment and limiting the Commonwealth’s authority to burden that right.

A NO vote rejects the proposed constitutional amendment. It would not, by itself, prohibit abortion, contraception, IVF or other reproductive care. Instead, the Virginia Constitution would remain unchanged on this issue, and existing laws would remain subject to the normal legislative and legal processes.

For voters, the decision therefore involves both reproductive policy and a larger question about where authority over that policy should reside.

Supporters believe reproductive freedom is sufficiently fundamental to be protected from shifting political majorities by the Virginia Constitution.

Opponents believe the proposed constitutional language is too broad and could prevent elected lawmakers from maintaining or adopting restrictions they believe are appropriate.

On Nov. 3, Virginia voters will decide which approach becomes part of the Commonwealth’s Constitution.