Virginia voters will decide this November whether to add a right to “reproductive freedom” to the state constitution, and critics say the actual text of Proposed Constitutional Amendment Question 1 goes well beyond the summary voters will see on the ballot.
The ballot description tells voters the amendment would protect decisions about prenatal care, childbirth, birth control, abortion, miscarriage management and fertility care, shield doctors, nurses and patients from punishment for those decisions, and permit restrictions on third-trimester abortion except when the patient’s health is at risk or the pregnancy cannot survive.
The underlying constitutional language, according to the American Center for Law and Justice, says more than that. The proposed text declares that “every individual has the fundamental right to reproductive freedom,” which shall not be “directly or indirectly, denied, burdened, or infringed upon” absent a narrowly defined compelling state interest — a list that does not include protecting unborn human life.
Parental Rights in Question
Virginia law currently requires parental consent or judicial authorization before a minor can obtain an abortion, with specific exceptions. The proposed amendment contains no explicit parental-rights protection and uses the phrase “every individual” rather than “every adult.”
The ACLJ argues that omission matters: because the amendment does not expressly exclude minors, a minor could argue that parental consent, notification or judicial-authorization requirements “directly or indirectly” burden the new constitutional right. Whether courts would agree is untested, but the group says the amendment would hand abortion-rights litigants a new argument to challenge Virginia’s existing parental-involvement laws.
What “Indirectly” Means Is Undefined
The amendment bars the commonwealth from denying, burdening or infringing the right “directly or indirectly” — a term the text does not define. The ACLJ raises the question of whether that ambiguity could reach religious organizations, licensed counselors or pregnancy resource centers that decline to facilitate or refer for abortions.
The group notes that any such conflict would still run up against First Amendment protections already recognized by the U.S. Supreme Court in cases including National Institute of Family and Life Advocates v. Becerra and McCullen v. Coakley, and that a state constitutional amendment cannot override federal constitutional rights. Still, the ACLJ says the amendment’s text does not account for that precedent, leaving the question open for Virginians to weigh before voting.
Third-Trimester Restrictions Narrowed
Supporters of Question 1 note the amendment technically permits regulation of third-trimester abortion. But under the text, Virginia could not prohibit a third-trimester abortion when a physician determines it is medically indicated to protect the woman’s life, physical health or mental health, or when the physician determines the unborn child is not viable. Because those standards would be constitutional rather than statutory, the legislature could not alter them through ordinary lawmaking.
The ACLJ contends that combination — a physician-determined health exception with no legislative override — would place a significant category of third-trimester abortions effectively beyond the commonwealth’s reach, regardless of how the legislature votes.
Coercion Concerns Raised
The group also points to cases in which men have been accused of obtaining abortion drugs and secretly administering them to pregnant women who wanted to carry their pregnancies, and to broader concerns about coercion by partners, traffickers or adults responsible for a minor’s pregnancy. The ACLJ asks whether Virginia will retain sufficient authority to verify a minor’s abortion decision is voluntary, keep abuse-reporting requirements enforceable, and investigate whether an abortion is being used to conceal abuse, statutory rape or trafficking. The amendment’s text does not address those scenarios directly.
The ACLJ has launched a petition opposing the measure, calling it part of a broader push by abortion-rights advocates to establish expanded rights at the state level following the Dobbs decision.
