House Joint Resolution No. 1

Reproductive Freedom (abortion)

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  • Jan 14 – Passed the House of Delegates: HD60 Wyatt – N     HD69 Downey – Y     HD70 Simonds – Y     HD71 Anderson – Y     HD86   Thornton – Y     HD87   Ward – Y
  • Jan 16 – Passed the Senate: SD23 Locke – Y      SD24 Diggs – N      SD26 McDougal – N
 
  • The Senate (SB449) has developed the proposed language that will be used on the ballot in the November General Election.  You will find that at the bottom of our discussion.

Click on the picture to open the document as posted on the Virginia Legislative Information System.  On this page look for underlined blue text like “Click on the thumbnail” in the previous sentence.  Those are links to source websites.

Summary As Introduced

Fundamental right to reproductive freedom. 

  • Every individual has the fundamental right to reproductive freedom
  • That right shall not be denied, burdened, or infringed upon unless justified by a compelling state interest
    • Defined within the text of the amendment
    •  Achieved by the least restrictive means.
  • Commonwealth can regulate the provision of abortion care in the third trimester when
    • Medically indicated to protect the life or health of the pregnant individual
    • When the fetus is not viable
  • Prohibits penalizing, prosecuting, or taking adverse action against an individual for exercising the right to reproductive freedom or for aiding another individual in the exercise of such right.

Opening Thought for Voters (this is also the closing thought)

Is this amendment primarily about protecting access, setting constitutional principles, or transferring decision-making authority—and is the language precise enough to do so?

What’s On This Page?

  1. Comparison table – current abortion law and proposed amendment
  2. A short discussion about ambiguous terminology
  3. Key questions for voters
  4. The Question as it will appear on the ballot

Comparison Between Current Virginia Abortion Law and the Proposed Amendment

Legal Basis

    Current: Statutory law under the Virginia Code (Title 18.2, Article 9). Not constitutionally protected; could be changed by the legislature. (Virginia Law)    Proposed: Would become part of Virginia’s Constitution, Article I (Bill of Rights) if approved by voters.

Fundamental Right to Abortion / Reproductive Freedom

    Current: No express constitutional right. Abortion is legal by statute through viability/third trimester with conditions. (Center for Reproductive Rights)    Proposed: Every individual has a fundamental right to reproductive freedom, including decisions about prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care. (Proposed Amendment)
Gestational Limits    Current: Abortion broadly legal through the second trimester (roughly ~24-26 weeks) and allowed after that only with medical certification. (Virginia Law)    Proposed: No specific gestational limit in the amendment. Instead, restrictions must meet a compelling state interest and least restrictive means test. (Proposed Amendment)
Third-Trimester Restrictions/Exceptions    Current: After second trimester, abortion is lawful only if: physician and two consulting physicians certify that continuation likely would cause death or substantial and irreparable impairment of health; and life support must be available if viability is evident. (Virginia Law)    Proposed: Commonwealth may regulate abortion in third trimester but may not prohibit an abortion that a physician judges necessary to protect the life or the physical or mental health of the pregnant individual, or if the fetus is not viable. There is no language in the amendment text saying that life-support must be provided for a viable fetus in any situation.  (Proposed Amendment)
Standard of Review for Restriction    Current: Legislative/statutory standard; restrictions apply as law unless struck down by court; no heightened constitutional protection.    Proposed: Restrictions can only be imposed if justified by a compelling state interest and achieved by the least restrictive means. (Proposed Amendment)
Criminal/Legal Penalties (Provider)    Current: Statutory penalties for illegal abortions exist; providers must follow statutory conditions (especially third trimester). (Virginia Law)    Proposed: Amendment would prohibit the state from penalizing or prosecuting individuals for exercising their reproductive freedom (Proposed Amendment)
Parental Consent/Notification    Current: Statute requires informed written consent, and minors generally require parental or guardian consent (or judicial bypass). (Virginia Law)    Proposed: Amendment does not explicitly mention parental consent laws; any infringement must meet compelling interest test, which could conflict with existing consent requirements. (Proposed Amendment)
Scope Beyond Abortion    Current: Statute focuses narrowly on abortion procedures and conditions. Contraception and other reproductive care are allowed by separate laws. (Center for Reproductive Rights)    Proposed: Protects a broader set of reproductive decisions (prenatal, birth, postpartum, contraceptive, miscarriage, fertility care). (Proposed Amendment)
Who Is Protected    Current: Statutory rights of patients and providers under law.  Measures for life support for the product of such abortion or miscarriage must be available and utilized if there is any clearly visible evidence of viability. (Virginia Law)    Proposed: Every individual (inclusive language) with respect to reproductive freedom. No provision for life support of viable fetus after abortion. (Proposed Amendment)
Judicial Enforcement    Current: Enforcement challenges through courts rely on statutory interpretation; no constitutional standard.    Proposed: Individuals could challenge laws under this constitutional right in court. (Proposed Amendment)
Legislative Stability    Current: Can be changed by simple majority vote in General Assembly and governor approval (or override).    Proposed: Harder to change once constitutional — requires another amendment through the multi-step constitutional process. (VPM)

Ambiguities

The phrase “fundamental right to reproductive freedom, including…” contains ambiguous language.

  • Ten states have enacted reproductive-freedom amendments, but there is no uniform definition of the term.
  • This raises questions about what “reproductive freedom” means and what types of care it covers.
  • The word “including” is significant:

Under both current law and the proposed amendment, only physicians may determine whether an abortion is medically indicated to protect the life or physical or mental health of the pregnant individual.

  • The AMA defines a physician as an individual with an M.D. or D.O. degree.
  • The American Psychiatric Association defines a psychiatrist as an M.D. or D.O. who specializes in mental health.
  • Not all physicians are mental-health specialists.
  • As written, a physician without mental-health training may decide whether an abortion is necessary to protect the pregnant individual’s mental health.

Key Questions for Voters

  • Who Ultimately Defines the Right?
    •  If “reproductive freedom” is not defined in the Constitution, who decides what it means in practice—the legislature, courts, medical boards, or advocacy groups?

    • How comfortable are voters with judicial interpretation setting long-term policy?

  •  What Existing Laws Could Be Affected?
    • Could current statutes—such as parental consent, informed consent, clinic regulations, or licensing requirements—be challenged as infringing on reproductive freedom?

    • Which laws might survive a “compelling state interest / least restrictive means” test, and which might not?

  • What is the Role of the State After Viability?
    • The amendment allows regulation in the third trimester but restricts prohibitions when a physician determines abortion is necessary for life or physical or mental health.

    • How broadly might “mental health” be interpreted, and what safeguards, if any, would apply?

  • Are There Age-Related Implications?
    • The amendment refers to “every individual”.

    • How might courts interpret this language with respect to minors, parental involvement, or consent requirements?

  • Could the Amendment Affect Non-Abortion Policies?
    • The amendment covers prenatal care, childbirth, postpartum care, contraception, miscarriage management, and fertility care.

    • Could future disputes arise over medical conscience protections, insurance mandates, or public funding related to these services?

  • How Does This Compare to Keeping Policy in Statute (Law)?
    • Would similar protections be achievable through ordinary legislation rather than constitutional amendment?

    • What flexibility would be lost if circumstances, medical standards, or public opinion change?

  • What Does “Least Restrictive Means” Mean in Practice?
    • This is one of the highest legal standards in constitutional law.

    • How difficult would it be for the Commonwealth to justify any new health or safety regulation related to reproductive care?

  • Will the Ballot Language Be Sufficient?
    • Does the ballot question provide enough detail for voters to understand the full legal effect of the amendment?

    • Should major policy changes rely on brief ballot summaries or more detailed legislative processes?

The Question as it will appear on the ballot

 

Senate Bill 449 (Click here for the legislation)

"Question: Should the Constitution of Virginia be amended to (i) protect the freedom to make personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care; (ii) protect doctors, nurses, and patients from being punished for these decisions; and (iii) allow for restrictions on access to abortion during the third trimester of pregnancy except when the patient's health is at risk or the pregnancy cannot survive?"

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