Virginia Democrats Introduce Amendment to Enshrine ‘Fundamental Right’ to Abortion in State Constitution

Dashing Republican Governor Glenn Youngkin’s hopes of gaining unified control of Richmond in 2024, Virginia Democrats romped to victory in this year’s off-year elections earlier this month, narrowly retaking the house of delegates and holding their majority in the state senate after campaigning heavily on preserving access to abortion. Fresh off of that victory, Virginia Democrats are already going on offense on the issue of abortion.

A new constitutional amendment pre-filed Monday by Virginia Democrats’ new house majority leader-elect Charniele Herring would enshrine a “fundamental right to reproductive freedom” in the state constitution.

“This right to make and effectuate one’s own decisions about all matters related to one’s pregnancy shall not be denied, burdened, or infringed upon unless justified by a compelling state interest and achieved by the least restrictive means that do not infringe an individual’s autonomous decision-making,” reads the pre-filed amendment, which lawmakers will consider once the new General Assembly session kicks off in January.

The constitutional amendment seems to suggest a striking departure from the commonwealth’s current ban on abortions after 26 weeks and 6 days of pregnancy, with some exceptions in the third trimester. Unlike Ohio’s newly passed Issue 1 ballot initiative, which allows for limits on the procedure beyond the fetal viability point with some exceptions, Herring’s proposed constitutional amendment excludes fetal viability from its definition of state compelling interest. “A state interest is compelling only when it is to ensure the protection of the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine,” the amendment continues. “The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.”

Herring’s proposed amendment goes on to say that barring any compelling state interest, Virginia shall not in any way penalize an individual who aids another “in the exercise of such individual’s right to reproductive freedom.” 

The commonwealth’s drawn-out constitutional amendment process means Herring’s abortion-related amendment will not come before voters in 2024. Constitutional amendments in Virginia must pass by a majority in both the senate and the house of delegates two years in a row — with a house of delegates election in between — before the amendment can make its way onto the ballot.

This constitutional amendment would seem to put Herring at odds with some of the status quo abortion-related rhetoric many state legislative Democrats had campaigned on this cycle. Democratic house speaker-designee Don Scott, for example, campaigned heavily in the lead-up to Election Day on preserving Virginia’s abortion laws as is. “The goal is for these laws to remain the same and for all health care decisions to be between a woman and her doctor, not the heavy-handedness of Richmond politicians,” Scott told the Virginian-Pilot in September.

A proposal to enshrine abortion rights passed in the senate but failed in the Republican-controlled house of delegates earlier this year.

Herring and Scott did not immediately respond to requests for comment. But Senate Democrats are already promoting the proposed constitutional amendment in social-media posts as one of the General Assembly’s first bills of the 2024 session, along with legislation relating to voting rights, gun rights, voting rights, and the minimum wage.

This development comes weeks after Virginia Republicans laid blame on outside groups like the Republican National Committee for not giving Youngkin and down-ballot Republicans the financial resources to combat millions in abortion-related ad spending in the lead-up to Election Day. Republicans had campaigned heavily on a proposal by Youngkin to ban abortion in the commonwealth after the 15-week mark with exceptions for rape, incest, and the life of the mother, but many Democrats had accused Republicans in ads of wanting to ban abortions full-stop.