Early voting begins tomorrow in Virginia. Voters should not overlook Amendment 1, a proposed addition to the state constitution that its drafters describe as protecting “reproductive freedom.” Reading the ballot text, one might assume that abortion statutes currently on the books in Virginia are pro-life and that this proposal is simply an attempt to repeal them, but that is not the case. Existing law is already pro-abortion, and Amendment 1 would nullify modest protections for babies nearing birth and strip parents of any say in some of the most consequential decisions of their children’s lives—decisions that go well beyond abortion.
Start with how permissive Virginia law already is. Since the 1970s, Virginia has allowed abortion on demand through the first two trimesters with a mother’s health exception in the third. But that exception is triggered when “[t]he physician and two consulting physicians certify . . . that in their medical opinion, based upon their best clinical judgment, 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.” In 2020, Governor Ralph Northam signed the Reproductive Health Protection Act, loosening the law further still: It let nurses, not just physicians, perform first-trimester abortions, repealed informed-consent requirements, and freed abortion clinics from hospital-level health and safety regulation. Amendment 1 is not needed to preserve any of that; state law already does.
The few safeguards that exist in Virginia law would be eliminated by Amendment 1. For example, there is still a requirement on the books, enacted by a bipartisan majority in 2003, that a parent be consulted before a doctor performs an abortion on a minor daughter—subject to a judicial-bypass exception. Amendment 1 would eliminate that and—just for starters—virtually all abortion regulations, no matter how modest. Look at its operative text. It declares a “fundamental right to reproductive freedom”—that “includ[es] the ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care”—“shall not be, directly or indirectly, denied, burdened, or infringed upon” absent a “compelling state interest achieved by the least restrictive means.” Such language is broad enough that almost any regulation can be recast as an “indirect” burden. And “compelling” is defined so narrowly that no parental-involvement law could ever qualify: A state interest counts only if it serves “the limited purpose of maintaining or improving” the patient’s health “and does not infringe on that individual’s autonomous decision making.” The law requiring a father or mother to be consulted before his or her minor daughter undergoes an abortion would not survive.
Perhaps even more alarmingly, Virginia’s current third-trimester safeguards—which require certification from the treating physician and two other physicians to confirm a likely substantial and irremediable impairment to the mother’s health—would be stripped away. Amendment 1 replaces that three-physician check with the judgment of a single abortion provider that a procedure is “medically indicated to protect the” mother’s “life or physical or mental health.” Such a capacious mental health exception is so elastic that it would effectively permit abortion on demand at all stages of pregnancy.
Amendment 1’s free-for-all language goes further still. The Virginia ballot measure shields from “adverse action” anyone who aids or assists another person’s exercise of the “right to reproductive freedom” with that person’s consent. As Ed Whelan pointed out in his excellent analysis, that provision could leave Virginia’s courts and licensing boards powerless to act against a botched, unlicensed abortion, or against whoever supplied pills to a teenager outside any medical setting, because doing so would itself count as “adverse action” against someone assisting her.
Amendment 1’s language also reveals that the proposal extends well beyond abortion. After all, the term “reproductive freedom” is broader than abortion. The right is defined as “including”—not “meaning”—a specific list of categories, which suggests the list is illustrative rather than exhaustive. So those categories—“the ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care”—are not the extent of the covered subject matter. The new right could extend to any medical procedure that involves the reproductive system. What’s more, anything that “relat[es] to . . . fertility care” is fair game. As Whelan notes, that could include the administration of medical interventions such as puberty blockers, cross-sex hormones, and sterilization surgery.
In other words, this proposal reaches beyond abortion to the imposition of gender ideology. And as with abortion, expect the state constitution to supersede any laws that grant parents the right to be involved in their minor child’s decision to transition away from their biological sex.
What a mess. And part of what makes this ballot initiative so offensive is that the posted “explanation for voters” about Amendment 1 is misleading. In its one-sentence summary of “present law,” it states that “the Virginia Constitution does not explicitly provide to its citizens a right to reproductive freedom” without noting how much protection statutory law already gives to abortion. In its two-sentence summary of the “proposed law,” it notes “the fundamental right to make and carry out decisions about a person’s own reproductive care with only certain, specific exceptions,” and then the only specific detail it offers is about allowing third-trimester abortion “when it is medically needed to protect the life and health of the pregnant person”—omitting that this is already statutory law, but Amendment 1 would remove doctor-approval procedures on the books and leave those late-term abortions virtually on demand. The explanation does not provide specifics about any context beyond abortion or about erasing parental involvement even where abortion itself is concerned.
I expect that it will be called a triumph for democracy that this ballot initiative has gone before the voters in the first place, but this should not be spun as a democratically decided issue. The ballot language itself is too vague, confusing, and misleading to be considered a genuine attempt to reflect the will of the people. Unfortunately, we have gone from judges making up the law in this area to activists gaming ballot-initiative language. Virginians who cast their votes starting tomorrow may find some of the issues in play difficult as matters of policy, but they have an easy decision to make on this sham of a proposal: Vote no on Amendment 1.