By Michael Hevener
WHAT CHANGES IF VIRGINIA CONSTITUTIONALIZES REPRODUCTIVE FREEDOM?
Question 1 would place a fundamental right to reproductive freedom in Virginia’s Constitution, changing the legal standard for evaluating restrictions.
The debate over Question 1 is sometimes reduced to a simple question:
Should abortion be legal in Virginia?
But that is not actually the choice before voters.
Abortion is already permitted in Virginia under existing law, with different statutory rules depending on the stage of pregnancy.
Question 1 asks voters whether reproductive freedom, expressly including abortion care, should become a fundamental right under the Constitution of Virginia.
That distinction matters.
A statute can be amended or repealed by the General Assembly.
A constitutional right occupies a different position. Virginia’s statutes must operate consistently with the Virginia Constitution.
And when the proposed constitutional language is compared with Virginia law today, particularly the law governing abortion later in pregnancy, several significant differences emerge.
Virginia voters deserve to understand those differences before changing their Constitution.
READ THE WORDS
The proposed amendment begins by declaring:
“Every individual has the fundamental right to reproductive freedom.”
That right expressly includes decisions involving prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management and fertility care.
The amendment then establishes a demanding constitutional standard for government restrictions.
The Commonwealth may not directly or indirectly deny, burden or infringe the right unless it can satisfy the constitutional standard contained in the amendment involving a compelling state interest achieved through the least restrictive means.
Then comes the language governing abortion during the third trimester.
Virginia could still regulate third-trimester abortion.
But the amendment says that “in no circumstance” could the Commonwealth prohibit an abortion when, in the professional judgment of a physician, it is medically indicated to protect the life or physical or mental health of the pregnant individual, or when the physician determines the fetus is not viable.
The amendment also declares itself “self-executing.” The constitutional provision therefore would not depend upon the General Assembly first passing a separate implementing statute before the right could take effect.
Those words should be compared carefully with the law Virginia has today.
THE CONSTITUTION COMES FIRST
Understanding Question 1 requires understanding the difference between a Virginia statute and the Virginia Constitution.
The General Assembly writes statutes.
But those statutes operate beneath the Constitution of Virginia.
THE CONSTITUTION IS THE HIGHER LAW.
If Question 1 is approved, it would not merely become another abortion law sitting beside Virginia’s existing statutes.
It would become part of Virginia’s Bill of Rights.
That distinction is critical.
Virginia’s existing laws concerning abortion, parental consent, medical requirements and other regulations would have to operate consistently with the newly created constitutional right.
The amendment declares reproductive freedom a “fundamental right.”
It further says the Commonwealth may not directly or indirectly deny, burden or infringe that right unless it can satisfy the constitutional standard contained in the amendment.
In practical terms, Virginia’s existing and future laws affecting reproductive freedom would be viewed through a new constitutional lens.
Consider parental consent.
Virginia currently requires consent for an abortion performed on an unemancipated minor, subject to statutory exceptions including judicial bypass under §16.1-241.
If Question 1 passes, an additional constitutional question arises:
Can that requirement be enforced consistently with the fundamental reproductive-freedom right Question 1 gives to “every individual”?
The same principle could apply to other abortion regulations.
Three physicians.
Hospital requirements.
Medical certifications.
Rules governing who may assist another person.
Those statutes do not outrank the Constitution.
That does not mean every existing restriction automatically disappears if Question 1 passes.
Nor does Question 1 expressly repeal Virginia’s existing abortion statutes.
It means the validity and enforceability of those restrictions could be tested against the new constitutional right and the standard contained in the amendment.
When a Virginia statute conflicts with the Virginia Constitution, the Constitution controls.
That is why every word in Question 1 matters.
Virginia voters are not merely changing an abortion statute.
They are deciding what constitutional standard existing and future laws must satisfy.
They are deciding what limitations future General Assemblies must observe.
And they are placing language in Virginia’s Constitution that courts may be called upon to interpret when existing or future laws are challenged.
WHAT COUNTS AS A “COMPELLING STATE INTEREST”?
This is one of the most consequential provisions in Question 1, and it deserves considerably more attention.
The amendment does not merely require the Commonwealth to demonstrate a “compelling state interest” when it burdens the fundamental right.
It defines when such an interest qualifies.
Under Question 1, an interest is “compelling” only when it meets the conditions specified in the amendment, including that it is for the limited purpose of maintaining or improving the health of the individual seeking care, is consistent with accepted clinical standards and evidence-based medicine, and does not infringe that individual’s autonomous decision-making.
That raises an important constitutional question.
What happens when Virginia wants to regulate reproductive care based upon an interest other than the health of the individual seeking the care?
Could the Commonwealth rely upon an interest involving fetal life?
Could it rely upon an interest involving parental involvement?
Could it rely upon another public-policy interest not encompassed by the amendment’s definition?
The amendment does not expressly answer how courts would resolve every future case.
And The Commonwealth Ledger will not pretend to know how a court would rule.
But the language matters.
Question 1 does more than require government to identify an important reason for burdening reproductive freedom.
It places constitutional boundaries around what can qualify as the compelling interest necessary to justify that burden.
That could significantly affect how existing and future reproductive laws are evaluated.
TODAY’S LAW vs. QUESTION 1
Virginia’s existing law governing abortion subsequent to the second trimester contains several specific requirements.
Under current §18.2-74:
- The abortion generally must be performed in a licensed hospital.
- The physician performing the abortion and two consulting physicians must certify the required medical circumstances.
- Continuing the pregnancy must be likely to result in death or “substantially and irremediably impair” the woman’s mental or physical health.
- Life-support measures must be available and used when there is clearly visible evidence of viability.
Virginia also has a separate life-saving exception. Under §18.2-74.1, if a physician believes terminating the pregnancy is necessary to save the woman’s life, §§18.2-71, 18.2-73 and 18.2-74 do not apply. The requirements above describe the general framework in §18.2-74; they are not universal in a life-saving situation.
Now compare those statutory requirements with the proposed constitutional exception governing third-trimester abortion.
Question 1 refers to:
- “a physician”
- “physical or mental health”
It does not contain the existing statutory words:
- “substantially and irremediably”
The constitutional provision itself also does not reproduce the current three-physician requirement, licensed-hospital requirement or comparable life-support language.
Again, this does not establish that each of those statutes automatically becomes invalid.
If Question 1 passes, those existing statutory provisions remain on the books unless they are changed by the General Assembly or found unenforceable under the new constitutional standard.
But those requirements would operate beneath a new fundamental constitutional right and could be evaluated under that constitutional standard.
THREE PHYSICIANS vs. “A PHYSICIAN”
Under the general rule in §18.2-74, an abortion subsequent to the second trimester must be performed in a licensed hospital, and the performing physician and two consulting physicians must certify the required medical circumstances. A separate life-saving exception appears in §18.2-74.1.
That provides two additional medical judgments.
The proposed constitutional exception governing third-trimester abortion uses a different standard.
It relies upon “the professional judgment of a physician.”
The amendment itself does not require a second opinion.
It does not require two consulting physicians.
The amendment does not specify that the physician making this determination must be separate from the physician providing the abortion.
WHY DOES THE AMENDMENT NOT REQUIRE TWO CONSULTING PHYSICIANS?
Physicians routinely make enormously important decisions for their own patients and remain subject to professional standards of care.
Supporters of Question 1 may reasonably argue that a treating physician should be trusted to make those judgments.
But that does not eliminate the textual difference.
Current law expressly requires two additional consulting physicians.
The proposed constitutional exception does not.
Importantly, Question 1 does not expressly repeal the existing three-physician statute.
The constitutional question would instead be whether that requirement can continue to be enforced consistently with the newly established fundamental right and the constitutional standard governing burdens on that right.
The amendment does not require the physician making this determination to be someone other than the physician providing the abortion. Nor does it require an additional physician to confirm that the constitutional standard is satisfied.
Why establish a constitutional standard relying upon the professional judgment of “a physician” when current law expressly requires two additional consulting physicians?
Virginia voters deserve an answer.
WHAT DOES “MENTAL HEALTH” MEAN?
This may be one of the most consequential questions raised by the proposed language.
Question 1 does not define “mental health.”
Current Virginia law contains a more specifically worded threshold.
For an abortion subsequent to the second trimester under §18.2-74, the physicians must certify that continuing the pregnancy is likely to result in death or “substantially and irremediably impair” the woman’s mental or physical health.
Question 1 does not contain the words “substantially and irremediably.”
Instead, it says the Commonwealth may not prohibit a third-trimester abortion when, in the professional judgment of a physician, it is medically indicated to protect the pregnant individual’s “physical or mental health.”
How serious must the mental-health concern be?
Must it be severe?
Must it be permanent?
Must there be a diagnosed psychiatric condition?
Would temporary psychological distress satisfy the standard?
The constitutional text does not answer those questions.
That does not mean every mental-health concern would necessarily satisfy the standard.
The amendment also requires the abortion to be “medically indicated” in the professional judgment of a physician.
But Question 1 contains no express severity threshold comparable to current law’s “substantially and irremediably” standard.
For constitutional language governing third-trimester abortion, that difference deserves serious scrutiny.
A DIFFERENT THIRD-TRIMESTER STANDARD
Supporters of Question 1 can correctly say that the amendment permits Virginia to regulate abortion during the third trimester.
But that is not the end of the provision.
The amendment then limits that authority.
The Commonwealth may regulate third-trimester abortion, but “in no circumstance” may it prohibit one when a physician makes one of the determinations specified in the amendment.
That creates a materially different constitutional framework from the statutory framework Virginia has today.
CURRENT VIRGINIA LAW
- Three physicians for the required determination.
- A licensed hospital.
- Death or “substantially and irremediably” impaired mental or physical health.
- Life-support measures when there is clearly visible evidence of viability.
QUESTION 1’S CONSTITUTIONAL TEXT
- The professional judgment of “a physician.”
- Life, physical health or mental health.
- No “substantially and irremediably” language.
- No second physician’s opinion required by the amendment.
- No licensed-hospital requirement stated in the amendment.
- No comparable life-support provision stated in the amendment.
These are not predictions about what a court might someday do.
They are differences between the statutory requirements contained in Virginia law today and the constitutional language voters are being asked to approve.
Question 1 does not expressly repeal those existing statutory requirements.
The legal consequences of the differences would ultimately depend upon how existing statutes interact with the new constitutional right and how courts interpret that right when disputes arise.
WHAT ABOUT MINORS?
Then comes another phrase that deserves attention:
“Every individual.”
The amendment does not say “every adult.”
Virginia currently has a parental-consent framework for an abortion performed on an unemancipated minor, subject to statutory exceptions and a judicial-bypass procedure under §16.1-241.
Question 1 does not expressly repeal those requirements.
But neither does the proposed amendment expressly preserve them.
Instead, it would establish reproductive freedom, expressly including abortion care, as a fundamental constitutional right belonging to “every individual.”
That creates an important constitutional question.
If an unemancipated minor possesses the fundamental right established by Question 1, can Virginia continue requiring parental consent as a condition on the exercise of that right?
A possible counterargument is that Question 1 does not mention parental consent and therefore would leave the existing statute in place. That is one possible reading, not an answer written into the amendment.
That position deserves to be represented accurately.
But it does not eliminate the constitutional question.
Perhaps courts would uphold the requirement.
Perhaps particular portions would be challenged successfully.
The amendment itself does not tell voters the answer.
We should therefore be careful about claims from both sides.
It would be inaccurate to say that Question 1 expressly abolishes parental consent.
It would be equally inappropriate to pretend that elevating abortion to a fundamental right belonging to “every individual” has no potential implications for laws regulating a minor’s access to abortion.
Those laws would exist beneath the newly created constitutional right and could be tested against it.
Virginia voters should understand that before they vote.
“AIDING OR ASSISTING”
Question 1 contains another provision deserving scrutiny.
The amendment says the Commonwealth may not penalize, prosecute or otherwise take adverse action against an individual for “aiding or assisting” another individual in exercising reproductive freedom when that person voluntarily consents.
Again, consider those words alongside:
“Every individual.”
How would that provision operate when the individual receiving assistance is a minor?
How would “voluntary consent” be evaluated when a young person is under the influence or control of another adult?
How would existing laws designed to protect minors interact with this constitutional protection when those laws are alleged to burden assistance in exercising reproductive freedom?
Those are serious questions.
But precision matters.
The amendment does not say that coercion, abuse, trafficking or other independently unlawful conduct becomes lawful.
The Commonwealth Ledger should not claim that it does.
The legitimate constitutional question is how the protection for consensual “aiding or assisting” would interact with existing laws when those laws are challenged as burdens on the newly created fundamental right.
Once again, the Constitution would be the controlling law.
THIS IS NOT SIMPLY “LEGAL OR ILLEGAL”
Virginia voters should understand what Question 1 actually asks them to decide.
Abortion is already permitted in Virginia under existing law, with different statutory rules depending on the stage of pregnancy.
Question 1 would elevate reproductive freedom, expressly including abortion care, to the status of a fundamental constitutional right.
That changes the legal framework under which abortion regulations operate.
Under the general rule in §18.2-74, the post-second-trimester medical determination requires the performing physician and two consulting physicians.
The proposed constitutional exception relies upon the professional judgment of “a physician.”
Current law uses the words “substantially and irremediably” when addressing impairment of mental or physical health.
Question 1 does not.
The amendment itself does not reproduce the current hospital requirement.
It does not reproduce the current life-support provision.
“Mental health” is not given an express severity threshold.
Existing laws involving minors and parental consent would have to coexist with a constitutional right belonging to “every individual.”
And the amendment itself places boundaries around what governmental interests can qualify as sufficiently compelling to justify burdening that right.
Supporters may believe those changes are necessary to protect patients and physicians from government interference.
That argument deserves to be heard.
Opponents may believe Virginia is placing specific statutory safeguards beneath constitutional language that gives government substantially less room to regulate reproductive decisions.
That argument deserves to be heard too.
But voters should not be told that Question 1 merely preserves the status quo.
It does not.
THE COMMONWEALTH LEDGER’S VIEW
Constitutions should establish enduring principles with extraordinary care.
They are not ordinary statutes.
Virginia’s existing abortion laws can be debated, amended, tightened or loosened through the legislative process.
Question 1 would do something fundamentally different.
It would place reproductive freedom in Virginia’s Bill of Rights.
Existing and future statutes would then have to operate beneath that constitutional guarantee.
That makes the unanswered questions more important, not less.
Why establish a constitutional standard relying upon the judgment of “a physician” when current law requires the physician and two consulting physicians?
Why omit “substantially and irremediably” from the constitutional health standard?
Why leave “mental health” without an express severity threshold?
Why define the Commonwealth’s permissible compelling interest so narrowly?
Why create a fundamental right for “every individual” without expressly addressing Virginia’s existing parental-consent framework?
Why protect those who “aid or assist” another individual without expressly addressing how that protection interacts with laws involving minors?
And why should Virginia voters place these uncertainties into their Constitution when abortion is already permitted in the Commonwealth under existing law?
Those questions go directly to the words voters are being asked to approve.
The Commonwealth Ledger believes the differences between current law and Question 1 are too consequential, and the unresolved constitutional questions too significant, to approve the amendment as written.
THE COMMONWEALTH LEDGER RECOMMENDS
VOTE NO ON QUESTION 1
Before placing a new fundamental right into Virginia’s Constitution and subjecting existing statutory safeguards to that constitutional standard, Virginia voters should demand clearer language and clearer answers.
