Virginians will have the opportunity to change the commonwealth’s constitution three times this fall. But what happens if a constitutional amendment passed by voters could be considered at odds with current state statute?
Opponents to Ballot Question 1, the proposed constitutional amendment regarding access to reproductive healthcare, have alleged that the amendment would invalidate standing statutes regarding parental consent, third-trimester abortions and healthcare for infants born after an abortion procedure.
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But if the amendment is passed, a lawsuit would be needed, and a court would have to decide if it is in conflict with current law. Even then, there are few aspects of the amendment that could be considered in conflict with existing law.
If the amendment fails, Virginia law regarding access to reproductive healthcare remains at the status quo. If it passes, Virginia will remain mostly at the status quo, with some qualifications, said Lois Shepherd, a professor at the University of Virginia who focuses on the intersection of health law and bioethics.
“The amendment would not result in any automatic changes, so if someone thought an existing statute was in conflict with the constitutional amendment if it passed, they have to bring a lawsuit, a court would have to decide if there’s conflict,” she said. “There wouldn’t be any automatic overriding of existing statutes.”
Josh Hetzler, legal counsel for The Family Foundation, agreed that a legal challenge would need to be brought against any piece of existing state statute before the constitutional amendment could change state law. A judge would then need to determine if the statute is in conflict with the constitutional amendment. The Family Foundation is a conservative nonprofit organization that has been vocal in its opposition to the amendment.
Hetzler pointed to the last line in the amendment that says: This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of the section.
“That means that anyone can bring a court action immediately to a court, as a right,” he said. “A lot of times it’s hard to sue the government because of sovereign immunity, and you have to have a specific cause of action laid out in the statute typically.”
What does the constitutional amendment say?
The constitutional amendment, if approved by voters, would add the following section to Virginia’s Bill of Rights:
Section 11-A. Fundamental right to reproductive freedom.
That every individual has the fundamental right to reproductive freedom, including the ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care.
An individual’s right to reproductive freedom shall not be, directly or indirectly, denied, burdened, or infringed upon unless justified by a compelling state interest achieved by the least restrictive means.
Notwithstanding the above, the Commonwealth may regulate the provision of abortion care in the third trimester, provided that in no circumstance shall the Commonwealth prohibit an abortion (i) that in the professional judgment of a physician is medically indicated to protect the life or physical or mental health of the pregnant individual or (ii) when in the professional judgment of a physician the fetus is not viable.
The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.
The Commonwealth shall not 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. The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against any individual for aiding or assisting another individual in exercising such other individual’s right to reproductive freedom with such other individual’s voluntary consent.
For the purposes of this section, a state interest is compelling only if it is for the limited purpose of maintaining or improving the health of an individual seeking care, consistent with accepted clinical standards of care and evidence-based medicine, and does not infringe on that individual’s autonomous decision making.
This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of the section.
Opponents of the amendment, including Virginia’s two Catholic bishops and The Family Foundation, have argued that its broad language could leave the amendment open to different interpretations regarding existing statute. They pointed to established laws for parental consent of a minor to access abortion healthcare, access to third-trimester abortions and healthcare for an infant born after an abortion.
Shepherd said it is reasonable to ask whether the existing laws are in conflict with the constitutional amendment and that, typically, constitutional language is broad by design. She added that the proposed amendment is much more specific than other constitutional language, however.
“Compared to what the U.S. Supreme Court was relying on in making its decisions about abortion over the years, this is much clearer,” she said in a phone interview in late September.
“Courts are used to dealing with general language, and this is much more specific. I don’t know if you want much more specific language in your constitution because you want the language to be broad enough to reasonably provide guidance to situations we haven’t considered before,” she added.
The question about parental consent
Under current law, minors must obtain written, notarized consent from a parent or legal guardian to obtain abortion care. If consent is obtained, a doctor must notify the parent or legal guardian either in person or by telephone 24 hours before the procedure is scheduled to take place.
Opponents have pointed to language in the amendment that says “every individual” has a right to access reproductive healthcare including abortions, instead of “every adult.” It’s through that argument that opponents are saying that the amendment could do away with parental consent.
“The amendment doesn’t say outright what is allowed about parental notification and consent,” Shepherd said. “Right now we have parental consent laws that require consent of one parent for a minor seeking an abortion, but we also have a judicial bypass option for them. So if a minor can show a judge that she is mature enough to make the decision for herself — that’s called the Mature Minor Doctrine — then a judge can approve the abortion. Or if a minor can show that an abortion is in her best interest, then a judge can approve an abortion.”
The judicial bypass mechanism was created and required by the U.S. Supreme Court in the 1970s. Through its 1979 decision in Bellotti v. Baird, the federal high court required a judicial bypass for minors in states that have parental consent laws regarding abortion access.
“Do I think it would invalidate parental consent across the board? I don’t think so,” Shepherd said of the constitutional amendment. “One could argue that the judicial bypass is not sufficient under this amendment to protect a minor’s right. Maybe someone will argue that, and maybe they will be successful. But we don’t know.”
The proposed amendment says that the state can infringe on the right to access to the whole spectrum of reproductive care only if there’s a compelling interest to do so. That compelling state interest must be the health and wellbeing of the patient.
“This amendment is not aimed at invalidating parental consent laws. That does not appear to be what it’s talking about. It is focused in its broad language in saying everyone has these freedoms,” she added. “This amendment is about reproductive freedom broadly, so that would include the decision to keep the baby in addition to abortion.”
Hetzler took issue with the broad language of the amendment and said that he believes a judge would rule that the constitution has precedence over existing state law if a challenge were to be brought.
“There’s no qualification for age” in the amendment, he said. “Therefore, it would apply equally to minors as long as they can give informed consent.”
Hetzler said he believes that the judicial bypass requirement would become moot for minors seeking abortion care without parental consent, if the amendment is passed.
What about third-trimester abortions and infants born alive after abortion care?
Virginia’s current law allows for third-trimester abortion for patients only under dire circumstances: if the patient is at risk of dying, if continuing the pregnancy could severely impair the patient’s health or if the pregnancy cannot survive.
Current law requires that determination to be made by three doctors: the physician who would perform the procedure and two consulting physicians.
Shepherd said the requirement of three doctors to make that determination could be challenged in a lawsuit if the amendment is passed. The three-doctor requirement could be considered an intrusion on a right that may not be supported by a compelling interest of the state, as defined in the amendment.
“Compelling interest has to be for the health of the pregnant patient, so to the extent that there’s this additional gatekeeping for third-trimester abortions, provided in the existing statute because of the two additional physicians that have to sign off on it, I think that probably is in conflict,” she said.
The existing statute could be changed through a lawsuit to allow a single administering doctor and the patient to determine if a third-trimester abortion is necessary.
“I don’t know if we know what a court would say, but a court would be limited in determining whether that was constitutional on whether that safeguard is for the woman’s health or life,” Shepherd said.
She pointed out an exception in the amendment that allows for a ban on third-trimester abortions as long as the ban does not prevent an abortion that is necessary to maintain the health of the pregnant patient or because the fetus is no longer viable.
Hetzler argued that the amendment would remove limits on third-trimester abortions.
“Under current law, it’s three doctors. This would just make it one and it would be in the medical judgment of that doctor which could be the one providing the abortion who stands to gain financially,” he said.
He pointed out a phrase in the amendment that he said defines strict scrutiny regarding abortion: “For the purposes of this section, a state interest is compelling only if it is for the limited purpose of maintaining or improving the health of an individual seeking care, consistent with accepted clinical standards of care and evidence-based medicine, and does not infringe on that individual’s autonomous decision making.”
“Right now, you have to have pretty extreme circumstances to qualify for a third-trimester abortion because you have to have irremediable injuries, and this would just make it mental health,” he said.
“It’s going to be hard to bring a lawsuit against some of this because it would be the woman who was harmed and didn’t receive adequate care and oversight, who after she has been harmed and she regrets what happened, she could perhaps bring a lawsuit,” he added.
Current law also requires healthcare providers to care for infants born after an attempted abortion. Shepherd said there is nothing in the amendment to change that.
“Infants born alive are people, and they have equal rights to everybody else in this country,” she said.
Hetzler said The Family Foundation believes that the amendment will lead to a lack of accountability in abortion care because of a line in the amendment that says: The Commonwealth shall not 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.
He argued that part of the amendment removes accountability and because of that, “no one will ever know if someone is refusing to give care” to an infant born alive after an abortion procedure.
“It might still be lawful to say, ‘You have to help an infant born alive,’ but we’ll never know about those situations,” he said.
