Virginia voters approved the Right to Reproductive Freedom amendment on November 3. Unofficial results from the Virginia Department of Elections, updated November 11, showed 62.65 percent voting yes, or 2,228,256 votes to 1,328,574, with all 133 localities reporting. Those figures remain unofficial until the state certifies them.
The Founding Freedoms Law Center, the legal arm of the Family Foundation of Virginia, is asking Tazewell County Circuit Court to block certification of the results. Executive Director and Chief Counsel Josh Hetzler outlined the case in an interview with Virginia Insider.
Hetzler said the lawsuit has two main claims. The first is procedural. He argues the General Assembly failed to post the full language of the amendment on courthouse doors across Virginia during the intervening election, a step he says Virginia courts have historically required when the Constitution is changed.
The second claim, which he called the bigger issue, is that the ballot language was deceptive. The official Question 1 wording asked voters whether the Constitution should be amended to protect “the freedom to make personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care,” to protect doctors, nurses, and patients from being punished for those decisions, and to “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.”
Hetzler said that language never used the words “reproductive freedom” or “fundamental right,” even though the amendment text itself begins, “every individual has the fundamental right to reproductive freedom.” He argued the ballot listed popular items such as fertility care and miscarriage management and “buried” abortion in that list.
He also said the third-trimester clause was misleading. Many people, he said, voted yes because they thought the amendment would restrict late-term abortions, when he contends the amendment’s text makes such restrictions nearly impossible to enforce. The official amendment would let the Commonwealth regulate abortion care in the third trimester, but it would bar a prohibition when, in the professional judgment of a physician, an abortion is medically indicated to protect the life or physical or mental health of the pregnant individual, or when the physician judges the fetus is not viable.
Hetzler further argued that the ballot omitted major consequences he says would follow from the amendment, including the elimination of parental notification and consent for minors seeking an abortion, the effective removal of age limits that undergird statutory rape laws, the inability to regulate reproductive technologies such as IVF, surrogacy, and genetic manipulation, and a provision that, in his telling, would allow anyone to perform an abortion and bar the state from punishing them. Those points are claims in the lawsuit, not findings by a court.
In the interview, Hetzler said he has heard anecdotally from pro-life voters who supported the measure because the ballot language “sounded good,” and that he is not sure even some legislators who voted for the amendment fully contemplated its breadth. The suit, filed April 30, was brought on behalf of the Association of American Physicians and Surgeons, the Virginia Medical Freedom Alliance, and Tazewell resident and Bluefield Town Council member Meagan Kade.
The case is before Judge Jack Hurley Jr., the same Tazewell Circuit Court judge who earlier this year blocked certification of the April redistricting referendum and described that ballot language as misleading. The hearing is set for November 24.
Unofficial statewide results also show the amendment’s yes total slightly ahead of Sen. Mark Warner’s 2,218,503 votes, a comparison the host raised in the interview.
Hetzler noted a related procedural challenge to the marriage amendment, filed in Prince William County Circuit Court on behalf of Pastor Ben Purves of Occoquan Bible Church. That suit raises the same courthouse-posting claim.
Hetzler said he believes the case can reach the Supreme Court of Virginia and asked viewers to pray as it moves forward. He invited people to follow the work at familyfoundation.org and foundingfreedomslaw.org, and said the organization represents clients at no charge on issues of life, parental rights, religious freedom, and speech.
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