The voter referendum would allow abortion up to birth, abolish parental consent, and more.
The voter referendum would allow abortion up to birth, abolish parental consent, and more.
B eginning next week and running through Election Day, Virginia’s citizens will vote on whether to approve Amendment 1, a proposed constitutional amendment that would protect a “fundamental right to reproductive freedom.”
Contrary to what sponsors of the amendment have claimed, Amendment 1 would do far more than write into the state constitution the broad protections for abortion that already exist in state statutes. Rather, Amendment 1 would:
- Make abortion freely available throughout the third trimester of pregnancy, all the way up to birth;
- Abolish the right of parents to be consulted on, and to consent to, abortions sought by their young daughters; and
- Enable anyone to perform an abortion and to escape legal responsibility for botching an abortion.
Amendment 1 would also have extraordinary effects beyond the realm of abortion: It would enable a child, without her parents’ knowledge or consent, to receive puberty blockers, cross-sex hormones, and sterilization surgery.
No voter will be made aware of any of this by the deceptive account of Amendment 1 that will appear on the ballot.
Virginia’s laws have long provided women a liberal right to abortion. Under statutes enacted in the mid-1970s, abortion has been freely available during the first two trimesters and also available in the third trimester when a woman’s life or her physical or mental health is at stake. In 2020, Democratic governor Ralph Northam declared that he was “proud to sign” Virginia’s Reproductive Health Protection Act, which liberalized the state’s abortion laws even more: It authorized nurses to perform first-trimester abortions, repealed informed-consent provisions, and freed abortion clinics from hospital regulations.
If Amendment 1 merely embedded in the state constitution the protections for abortion that already exist in state law, it would be easy to understand why supporters of abortion would vote for it. But Amendment 1 would have extreme effects far beyond what its proponents acknowledge or, in some cases, perhaps even recognize.
Let’s look at the real effects Amendment 1 would have:
1. Amendment 1 would make abortion freely available through the third trimester of pregnancy.
A mother’s third trimester of gestation begins in week 27 or 28 of her pregnancy. An unborn baby is generally considered viable — i.e., able to survive outside the womb — at week 23 or 24.
Current Virginia law allows a woman to obtain an abortion in the third trimester when “the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman.” The law provides protections to ensure that the exception is invoked legitimately: The physician who will perform the abortion and two consulting physicians need to verify that the circumstances exist.
Amendment 1 would eviscerate these protections. An abortion could be done in the third trimester any time that an abortionist believes that an abortion is “medically indicated” to “protect the life or physical or mental health” of the mother. For many abortionists, that standard will be no limit at all. As longtime (now retired) third-trimester abortionist Warren Hern put it, “I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.” The American Psychological Association maintains that “people who are denied abortions are more likely to experience higher levels of anxiety, lower life satisfaction and lower self-esteem compared with those who are able to obtain abortions.” So, the logic goes, denying an abortion to a woman who wants to abort puts her mental health at risk, and an abortion is therefore “medically indicated” to “protect [her] mental health.”
2. Amendment 1 would invalidate Virginia’s law on parental consent.
The Virginia statutes that make abortion legal during the first trimester and second trimester and that provide the life-and-health exception during the third trimester all speak of “performing an abortion . . . on any woman.” A separate provision of Virginia law, enacted by large bipartisan majorities of both legislative houses in 2003, provides that a doctor generally may not do an abortion on a “minor” — a girl younger than 18 — without first obtaining consent from a parent of the girl. (Exceptions include when the minor obtains a judicial-bypass order.)
Amendment 1 would eliminate this separate treatment of girls. It would instead recognize the same abortion right for any “individual.”
The parental-consent statute would not survive Amendment 1. Any burden on an “individual’s right” to an abortion could be justified under Amendment 1 only by a “compelling state interest.” A “state interest is compelling only if it . . . does not infringe on that individual’s autonomous decision making.” But the very point of Virginia’s parental-consent law is to allow parents to be involved in a young daughter’s decision on abortion. Virginia’s law promotes parental authority at the expense of a girl’s “autonomous decision making.” Amendment 1 would not allow that.
Challenged on this point, the lead sponsor of Amendment 1 in the House of Delegates offered confused denials and ended up retreating to “we’ll see what the court says.”
3. Amendment 1 would enable anyone to perform an abortion and to escape legal responsibility for botching an abortion.
Amendment 1 says, “The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against any individual for aiding or assisting another individual in exercising such other individual’s right to reproductive freedom with such other individual’s voluntary consent.”
I have difficulty discerning what purpose this provision is intended to serve. Insofar as an individual is exercising her “right to reproductive freedom” lawfully, no one who aids or assists that individual would have any reason to fear being penalized or prosecuted.
This provision would also appear to be a source of all sorts of mischief, presumably not intended by Amendment 1’s sponsors.
Under this provision, a person who is not licensed under Virginia law to perform abortions would face no liability for doing so. That would include instances in which the person botches the abortion.
Under this provision, Virginia could not take away the license of an abortion practitioner who engaged in gross malpractice. It is far from clear that a woman could pursue a malpractice lawsuit against a physician who botched an abortion. Any judgment issued by a state court would, after all, be “adverse action against [the physician] for aiding or assisting another individual in exercising such other individual’s right to reproductive freedom with such other individual’s voluntary consent.”
Say that a girl’s boyfriend illegally obtains abortion pills and encourages the girl to take them without visiting a doctor. The girl voluntarily agrees to do so. It turns out she has an ectopic pregnancy or is beyond the weeks of gestation when the pills are safe for her to take. She dies as a result. No matter how egregious the boyfriend’s conduct, Virginia could not take any adverse action against him.
4. Amendment 1 would enable boys and girls to obtain sterilization surgery without parental consent.
Amendment 1 states that the “fundamental right to reproductive freedom” includes “the ability to make and carry out decisions relating to . . . contraception.”
Virginia law specifically defines contraception to include “sterilization procedures.” Those procedures involve surgery — vasectomies for males, tubal ligation or bilateral salpingectomy for females. Virginia law currently requires parental consent for sterilization of minors. (See Virginia Code § 54.1-2969.E.2.)
Amendment 1 would invalidate the parental-consent requirement for sterilization for the same reason that it would invalidate the parental-consent requirement for abortion. It would create an individual’s fundamental right to sterilization, and any burden on an individual’s right could be justified only by a “compelling state interest” — an interest that “does not infringe on that individual’s autonomous decision making.” A parental-consent provision treats a son or daughter under the age of 18 as not autonomous.
5. Amendment 1 would enable boys and girls to obtain puberty blockers and cross-sex hormones without parental consent.
Amendment 1 states that the “fundamental right to reproductive freedom” includes “the ability to make and carry out decisions relating to one’s own . . . fertility care.” Puberty blockers and cross-sex hormones delay or suppress fertility. They are common treatments for boys and girls who identify as transgender and who want to avoid developing as the sex they are.
Amendment 1 does not appear to declare a right to so-called “gender identity” treatment. But it would be a simple matter for boys and girls who identify as transgender to request puberty blockers and cross-sex hormones as “fertility care.” How, consistent with an “individual’s autonomous decision making,” could it be said that treatments that affect fertility cannot qualify as “fertility care”?
Here again, Amendment 1 would override any parental-consent requirement in state law.
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Now let’s look at the confusing and deceptive information that will appear in the “Explanation for Voters” on the ballot.
On “Present Law,” the Explanation states in its entirety:
Currently, the Virginia Constitution does not explicitly provide to its citizens a right to reproductive freedom nor does it explicitly protect or prohibit certain kinds of health care procedures or decisions.
That statement is correct, but it fails to inform the voter that “present law,” in the form of statutes, already guarantees a right to abortion through the first two trimesters and provides an expansive life-and-health exception in the third trimester. Many voters won’t know that, and many will be confused by the Explanation into thinking that “present law” doesn’t provide any protections for abortion.
The Explanation also doesn’t inform the voter that “present law” provides parents the right to be consulted on, and to consent to, abortions sought by their young daughters.
In explaining what Amendment 1 would do, the Explanation states in its entirety:
The proposed amendment would add to the Virginia Constitution’s Bill of Rights the fundamental right to make and carry out decisions about a person’s own reproductive care with only certain, specific exceptions. The proposed amendment specifically allows the state government to pass laws to regulate abortion care in the third trimester of pregnancy, but requires any such law to allow for abortion care when it is medically needed to protect the life and health of the pregnant person or because the fetus is not viable.
The second sentence is badly misleading. Again, many voters will mistakenly infer that Virginia doesn’t already allow third-trimester abortions when “medically needed to protect the life and health” of the mother. The sentence also doesn’t reveal that Amendment 1 would eliminate the procedural protections in existing law that ensure that the health exception is legitimately invoked.
The Explanation fails to inform the voter that Amendment 1 would invalidate Virginia’s laws on parental consent for abortion and for other medical care that falls within the scope of “reproductive freedom.”
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In examining what Amendment 1 means, I of course am not stating that it is certain that the courts will adopt my readings. But the fact of the matter is that courts have been far more inclined to impose expansive understandings of “reproductive freedoms” than narrow ones.
That is likely to be true of the Supreme Court of Virginia as well. Virginia has moved from a red state to a purple or blue state over recent decades. Its General Assembly appoints Supreme Court justices. Democrats control both houses of the General Assembly, and that control is likely to continue. So it’s reasonable to expect that the Supreme Court of Virginia will become more liberal.
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Virginia voters should reject Amendment 1. Voters who support abortion rights should understand that Virginia law already guarantees women an unrestricted right to abortion through the first two trimesters. Amendment 1 would in practice radically expand the availability of third-trimester abortions, and it would eliminate the right of Virginia parents to consult with their daughter before she has an abortion. It also would enable boys and girls to obtain puberty blockers, cross-sex hormones, and surgical sterilization without their parents’ consent.