Bloxom provides insights on Virginia’s proposed Constitutional Amendments

By Delegate Rob Bloxom

Hi, this is Rob Bloxom with a Capitol Report. Another election is upon us and the most important decisions for voters in the 100th District will be on the three proposed amendments to the Virginia constitution.

My next three reports will take these amendments and try to educate readers in a nonpartisan way on what you will be voting on.

The first constitutional question is on abortion access in Virginia. In 2022, the Supreme Court ruled that Roe v. Wade overstepped its authority and that the issue of abortion access was to be returned to the states. This created chaos, with some states rushing to limit abortion while others rushed to loosen older restrictions that had suddenly become law.

In Virginia, the current law is basically the result of Roe v. Wade litigation over the last 40 years. To proceed with an abortion in the third trimester, it requires three doctors to confer and agree that the health of the mother is in jeopardy or the fetus is not viable. It also requires parental consent if the procedure is to be performed on a minor below the age of 16. The current amendment is motivated by a fear that abortion policy could swing radically after each election. However, instead of enshrining current Virginia law (or the current law with slight modifications), it proposes more sweeping changes.

  The issue on the ballot will read:

Question: Should the Constitution of Virginia be amended to (i) protect the freedom to make personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care; (ii) protect doctors, nurses, and patients from being punished for these decisions; and (iii) 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?

If this question passes then the following will be inserted into our Constitution.

If this Question passes, Virginia’s Constitution will be amended in the following way:

Article I, 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.

My main issue with this amendment is procedural rather than substantive. In my view, the description on the ballot is over-simplified and misleading. The amendment is poorly written and ambiguous in multiple places, which if passed, will inevitably require a judge to fill in the gaps. This litigation is both costly and unnecessary, as the Legislature could instead write a clearer, less ambiguous statute, or instead, enshrine the current law, which has already been litigated ad nauseum.

The policy changes are also worth noting. The amendment lowers the threshold from three doctors to one, and it includes mental health as a reason that a third trimester abortion can proceed. It is also silent on any standards of care or medical expertise that the providers of these abortions must possess. It says nothing about parental consent. As written, the legal protections offered to anyone involved, doctors or otherwise, are extremely broad and do not provide exceptions for any misconduct, malpractice or reckless behavior.

Every place of ambiguity or silence will need to be litigated. The last line of the amendment, about each line’s severability, was added to ensure that a judge striking down part of the amendment would not strike down all of it. The proposed amendment, as written, would also be in conflict with parts of the Code of Virginia. When in conflict, the Constitution overrules state code.

Whatever your views are on the subject at hand, I wanted to make sure everyone had a chance to read the Constitutional question and the proposed amendment for themselves, and to better understand the implications of the proposed changes. Whether your views are on one end of the spectrum or the other, make sure to vote on November 3rd.