Americans United for Life recently released our analysis on the legal and policy implications of enshrining a right to abortion in Virginia’s constitution. Virginians are now facing a significant challenge with House Joint Resolution 1 (HJ1). If passed, it would amend the Virginia constitution to state:
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.
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Virginia’s HJ1 Language is Deceptive.
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.
But HJ1’s language is deceptive. First, the misleading phrasing of this amendment makes it appear as though Virginia currently restricts or is attempting to restrict individuals from making decisions about contraception or “all matters related to one’s pregnancy.” This is not true, as Virginians can freely obtain contraception as well as provide care for their preborn child.
Current law also permits elective abortions up through the first three months of pregnancy without restriction and allows for certain common-sense protections if a woman seeks an elective abortion during months four through six of her pregnancy, such as licensure provisions to protect the health and safety of women.
Virginia Already Authorizes Interventions to Save the Life of the Mother
Moreover, Virginia already authorizes interventions to save the life of the mother that, in the professional judgment of the treating provider, are medically necessary, even if they may, though heartbreaking, end the life of the unborn child or remove an unborn child who cannot or already has not survived the pregnancy (such as in the case of an ectopic pregnancy or miscarriage treatment), through all nine months of pregnancy. However, HJ1 simply allows the provider to ignore the welfare of the unborn child in scenarios where he or she may be delivered alive in order to treat the mother.
In other words, Virginia residents do not need HJ1. Virginians, under existing statutes, can lawfully:
- obtain contraception,
- continue their pregnancies,
- seek an elective abortion with virtually no restrictions through the first three months of pregnancy,
- seek an elective abortion with common-sense licensing provisions through the second trimester of pregnancy, and
- obtain medically-necessary interventions to save the life of the mother throughout the entire pregnancy.
No Virginia law prevents women from receiving any form of life-saving or medically-necessary treatment or intervention during their pregnancy. Furthermore, an abortionist may terminate a child in the womb if the woman is facing a life-threatening condition or likely substantial and irremediable impairment to her mental or physical health with no obligation to make efforts to preserve the life of the preborn child. Nor does any Virginia law prevent women from receiving any treatment or intervention where the unborn child has not or will not survive the pregnancy, such as in the case of miscarriages or ectopic pregnancies.
Virginia Should Say No to Elective Abortion Through All Nine Months
The misleading language of the amendment attempts to disguise unregulated access to elective abortion through all nine months of pregnancy as healthcare, and makes it nearly impossible for Virginia to enact any common-sense safeguards to protect women and their unborn children.
Elective abortion is not healthcare. It is the intentional destruction of innocent preborn human life. As the Supreme Court acknowledges in Dobbs, states have a legitimate interest in preserving prenatal life, mitigating fetal pain, and protecting maternal health. Thus, Virginia can regulate abortion in furtherance of these important interests.
But if Virginia passes HJ1, the fallout will be devastating, especially for the welfare of Virginia women and their preborn children. HJ1 will increase the number of unsafe, elective late-term abortions, threatens to eliminate common-sense and necessary protections for women’s welfare and parental involvement laws, will give unlicensed and unsafe abortionists free rein to operate clinics without rational health and safety regulations, will increase intimate partner violence by concealing coerced abortions in Virginia, and furthers the harmful and false narrative that unregulated, elective abortion is necessary for women to have equality and success in America.
If HJ1 is passed, it will enshrine a constitutional right to elective abortion through all nine months of pregnancy and strip Virginians of a voice in protecting women, girls, and preborn children from the violence of elective abortion.
Read AUL’s full legal analysis on HJ1 here & consider taking action on AUL’s advocacy hub by urging VA lawmakers to stand for life!