Early voting has begun in the Commonwealth and Virginians are already voting on the Right to Reproductive Freedom Amendment, Question 1 on the ballot. I testified against the extremism hidden in this amendment before the Virginia House of Delegates Privileges and Elections Committee nearly two years ago, and my concerns fell on deaf ears. Virginians are now the last line of defense for women and the preborn.
The pro-abortion majority of the Virginia General Assembly drafted the language, referring an amendment to the ballot that misleads voters. “Reproductive freedom”, as defined by the ballot question posed to Virginians, is “the freedom to make personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care” and protections for abortion providers from being punished for the decisions women make.
This is problematic for two reasons. First, the question implies that women do not already have the right to make personal decisions about their reproductive care, with the exception of abortion. In the Dobbs decision, Justice Alito wrote “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Furthermore, Supreme Court precedent clearly establishes the right to “bear or beget a child.” In Griswold v. Connecticut, which protects a right to marital privacy and contraception and later extended to nonmarried couples in Eisenstadt v. Baird, the Court explicitly protects the decision to have a child. Even earlier, in 1942, the Court established procreation as a “fundamental right,” applying strict scrutiny under the Equal Protection Clause to prevent forced sterilizations in Skinner v. Oklahoma.
And in cases where a mother’s life is in danger, the Emergency Medical Treatment and Labor Act prevents women or their preborn children from being denied emergency care. Virginia Question 1 only exists to enshrine access to abortion in the state constitution. No real healthcare is inaccessible or under threat by pro-life work.
The second problem exists in that a plain language reading of the amendment applies broad protections for the abortion provider, undermining the safety and regulatory standards that protect women. Adopting this amendment would prevent the Commonwealth from being able to “penalize, prosecute, or otherwise take adverse action against an individual based on such individual's own exercise of this fundamental right or such individual's own actual, potential, perceived, or alleged pregnancy outcomes, including miscarriage, stillbirth, or abortion.”
Abortion providers who botch procedures, sometimes even killing women, would be shielded from facing consequences that might otherwise be brought by any state governmental authority. The Virginia Board of Medicine would be barred from revoking the license of abortion providers who perforate a woman’s uterus. The amendment includes language limiting “reproductive freedom” if justified by a compelling state interest “achieved by the least restrictive means,” but there is little understanding of how that would be applied to current laws, including Virginia parental or informed consent laws. Having raised four children, including two daughters, for part of their lives in the Commonwealth, this is alarming.
This amendment ultimately comes down to ideological extremism that vastly exceeds Roe. Virginia already allows abortion for any reason through the first and second trimesters. The third trimester begins at 28 weeks’ gestation, meaning there is no need to justify an abortion for a few weeks past even fetal viability.
In the third trimester, abortion is allowed within the walls of a licensed hospital to save the life or health of the mother, provided three physicians certify this risk. Under the definition of “health” established in Roe’s sister case, Doe v. Bolton, abortions can be approved for a broad scope of reasons including “physical, emotional, psychological, familial, and the woman’s age”—both advanced and youth, without a square upper or lower limit. Virginia Question 1 eliminates the protection of the two consulting physicians, and only the abortion provider has to confirm the abortion is “medically indicated,” opening women up to coercion.
Citizens of the Commonwealth should reject this extremism outright and vote “no” on Virginia Question 1, so that we can work toward protecting life and ensuring safe healthcare for women. If we don’t reject this amendment now, Virginians will have to go back to the polls and pass another amendment to reverse the damage done this fall.
John Mize is the CEO of Americans United for Life, the nation's leading pro-life legal advocacy organization.
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