Measure to enshrine abortion in Virginia Constitution defeated

Efforts by Virginia Democrats to advance a proposed constitutional amendment that would allow voters to decide whether to place reproductive health protections in the state constitution, stalled in a House committee Friday when the bill was defeated by a Republican-majority panel.

The proposed Senate constitutional amendment aimed to add a section to the Virginia Constitution, stating every individual has the “fundamental right to reproductive freedom.” If the amendment was approved by the General Assembly, it would have ultimately gone before voters to decide whether to enshrine protections for reproductive health care and abortions.

Members of a House subcommittee voted five to three Friday to “pass by indefinitely” on the bill, which would allow the committee to reconsider legislation at a later time, though it is looking unlikely to happen this session. A similar proposed measure introduced in the House was defeated earlier this session.

Supporters of the constitutional amendment argued the measure would align Virginia’s Constitution with the right to reproductive freedom that existed before the U.S. Supreme Court overturned Roe v. Wade last summer. After the fall of Roe, several states moved to enact more stringent restrictions on abortion, including bans with limited exceptions. Under Virginia law, abortion remains legal through the second trimester, which is about 26 weeks of pregnancy.

Advocates of the amendment argued decisions on reproductive health should remain in the hands of patients and their physicians. Democratic Sen. Jennifer McClellan, the bill’s author, shared personal testimony that reproductive freedom was constitutionally protected her entire life, as she was born a month after the Supreme Court’s ruling in Roe v. Wade.

“I took for granted my entire adult life that if I ever had to make a fundamental health care decision, including the decision to terminate a pregnancy, that I would be able to do so in consultation with my doctor,” McClellan said. “Now, I don’t have that right anymore. Now, my children don’t have that right anymore.

“This amendment is to put that right in our state Constitution because the Supreme Court has put this fundamental question back in the political sphere, but this should be in the hands of health care professionals and patients.”

Opponents of the constitutional amendment voiced concern the measure could impact existing and future laws concerning unborn babies. Jeff Caruso, executive director of the Virginia Catholic Conference, argued the amendment would “enshrine abortion on demand into the state Constitution,” while “severely jeopardizing” existing state laws. Caruso also argued the measure would “preempt” future legislation to “protect babies before they are born.”

The bill was also subject to pushback from Republican lawmakers on the committee, who questioned whether the constitutional amendment would interfere with the state’s existing restrictions on abortion and the Virginia Bill of Rights.

Del. Rob Bell, R-Albemarle County, questioned specifically whether the constitutional amendment would “invalidate” Virginia’s existing restrictions on abortion during the third trimester and partial birth infanticide.

In response, McClellan said it would “depend on whether those restrictions were consistent with accepted clinical standards of practice and evidence-based medicine.” McClellan reiterated several times that under the amendment, restrictions on terminating pregnancies would have to be consistent with clinical standards and evidenced-based medicine.

The defeat of the proposed constitutional amendment follows the demise of several measures introduced this session surrounding abortion and reproductive health, including a 15-week abortion ban supported by Gov. Glenn Youngkin. Additionally, a House committee earlier this week voted to defeat a bill that would prohibit search warrants for the seizure of menstrual health data after Youngkin’s administration opposed it.

In other committee action Friday, the panel voted to kill a measure that would protect reproductive health providers from being subject to an extradition request from another state with more stringent abortion protections, if they provided legal reproductive health care within Virginia.

The bill’s author, Sen. Scott Surovell, D-Fairfax, gave the specific example that the bill would prevent a state like Alabama – where abortion is illegal except when the life of a mother is in danger – from extraditing a Virginia doctor for providing reproductive health care within the commonwealth.