Virginians approved a proposed amendment that would enshrine the right to reproductive care in the commonwealth’s constitution, but the plan has been facing a legal challenge and will be the subject of a court hearing next week.
The amendment, one of three that voters approved as part of Tuesday’s midterm elections, also covers access to birth control and in vitro fertilization. The Founding Freedoms Law Center first filed the challenge in the spring. The group Virginians for Reproductive Freedom became a co-defendant over the summer.
The challengers argued there are both procedural questions and concerns about the amendment language that appeared on the ballot. The challenge will be heard in a Tazewell County, Virginia, court next Friday.
“We believe that if you’re going to amend the constitution, you must first follow the constitution, and we believe that did not occur,” said Josh Hetzler, executive director and chief counsel of Founding Freedoms Law Center, “both procedurally and according to the deceptive question on the ballot.”
The House of Delegates clerk is required to send copies of the proposed amendment to courthouse clerks, Hetzler said, and the clerks have to post the language on courthouse doors before the election. That requirement was repealed, a move that came after the amendments had started to work through the necessary steps.
“That did not occur,” Hetzler told WTOP. “Nobody really disputes that that did not occur. The question is whether that invalidates the election, and the reason why we say that it does is because of the doctrine of strict compliance when it comes to constitution. The Virginia Supreme Court has said repeatedly that if we’re going to change our constitution, we’re going to require strict compliance with the rules.”
Separately, Hetzler said the ballot question is misleading, because, “When you read the amendment, it says it establishes a fundamental right to reproductive freedom. That’s a very broad right, and that has important legal meaning. Those words are never on the ballot.”
Broadly, Hetzler said the challenge stems from “a failure to state what the question is, deceiving about the nature of third trimester abortion restrictions, and omitting a lot of material things that the amendment actually does, we think it’s deceptive.”
Asked about the fate of the legal challenge, Gov. Abigail Spanberger said Wednesday she’s confident the amendment will be upheld.
While the redistricting amendment in the spring was overturned “on the basis of time frame and the timeline,” Spanberger said all three amendments on this fall’s ballots “will be sustained, because here, the General Assembly clearly had a full intervening election to include a full time frame of early voting, and it went through the multistep process in order to have a vote before the people.”
Charniele Herring, Virginia’s House majority leader, said the amendment is about the full spectrum of reproductive health, including birth control, access to in vitro fertilization, abortion care, prenatal care and postpartum care.
“I am hopeful for the outcome,” Herring told WTOP. “The challenge that is being lodged right now, that’s in front of the courts, has been struck down. I’m sure this amendment will be defended vigorously, and we have a legal process, and that’s what it is.”
With 97% of the vote in, The Associated Press has recorded 2,195,088 votes for “Yes” on the proposed question, and 1,319,073 for “No.”
Hetzler, with the Founding Freedoms Law Center, said they’re also challenging the proposed amendment that would remove the same-sex marriage ban from Virginia’s constitution on the same procedural grounds.
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