by Dick Hall-Sizemore

The 2025 General Assembly will be taking up constitutional amendments on three hot button issues—abortion, voting rights of felons, and same-sex marriage.

In Virginia, to amend the state constitution, the General Assembly must agree to the proposed amendment twice, with an intervening election for the House of Delegates. If the proposal is approved the second time, it is then submitted to the voters for approval. A majority vote in the referendum is needed for the change to become effective. The Governor has no veto power over proposed constitutional amendments.

HJR 1—Abortion. The proposal would add a “fundamental right to reproductive freedom” to Virginia’s Bill of Rights. “Reproductive freedom” is defined as including the “ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, postpartum care, contraception, abortion care, miscarriage management, and fertility care.”
The amendment prohibits one’s reproductive freedom from being “directly, or indirectly, denied, burdened, or infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” The amendment defines a state interest as being 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.”

The amendment does allow the state to regulate abortion in the third trimester of pregnancy, but it may not prohibit an abortion in the trimester which, in the professional judgment of a doctor, is needed to protect the life or physical or mental health of the mother or when a physician deems the fetus is not viable.

HJR 2—Voting rights of felons. Currently, the Virginia Constitution prohibits anyone convicted of a felony from voting unless the governor restores that right. The governor has sole authority in this matter. The proposed amendment would prohibit individuals convicted of a felony from voting only while they are incarcerated. Once released from incarceration, the individual would automatically have the right to vote.

The Virginia Constitution also prohibits anyone adjudicated as “mentally incompetent” from voting. The proposal would strike the term “mentally incompetent” and substitute anyone who has been adjudicated “by a court of law of competent jurisdiction to lack the capacity to understand the act of voting…as prescribed by law.”

HJR 9—Same sex marriage. Currently, the Virginia constitution declares in its Bill of Rights that only a marriage between one man and one woman is legal in Virginia. The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges that, under the due process and equal protection clauses of the 14th Amendment, same-sex couples had the same right to marry as do opposite-sex couples. Consequently, this provision of the Virginia Constitution violates the U.S. Constitution and is null and void. The proposal would amend this provision to declare that “any lawful marriage between two adult persons, “regardless of the sex, gender, or race of such persons,” is legal and shall be treated equally under the law.

My Soapbox

My comments and observations on each proposal:

Abortion—Despite its declarations about “reproductive freedom,” which includes childbirth and abortion, and an “individual’s autonomous decision making,” the proposed amendment infringes on that autonomy by allowing the Commonwealth to prohibit abortions in the third trimester, except in cases involving the physical and mental health of the mother and the viability of the fetus. Why is autonomy protected in the first and second trimesters and not the third? Why can a woman who is 23 weeks pregnant have the autonomy to get an abortion but why may a woman who is 26 weeks pregnant not have the same autonomy? If “reproductive freedom” is a “fundamental right,” in the words of the proposal, why shouldn’t that freedom be extended all the way to the point of birth?

The men of the Commonwealth should be relieved. We are not being discriminated against in this proposal. It applies to “pregnant individuals.”

What is “abortion care”?

Qualifications of voters—The term “mentally incompetent” is out of favor. Consequently, since they were amending this section of the constitution anyway, the drafters must have felt that they should modernize this provision in the process. However, they may have confused matters even more than they already are with regard to this term.

The Code of Virginia now has several terms or descriptions applicable to what formerly was called “mentally incompetent.” In the mental health section, a judge may find someone “incapable of making an informed decision.” In the criminal code, a person will not be tried for a crime if a judge finds probable cause to believe that the defendant “lacks the capacity to understand the proceedings against him or to assist his attorney in his own defense.” Election law equates “mentally incompetent” with “incapacitated”, as defined in a Code section dealing with guardianships. That section defines an “incapacitated” person as:

“an adult who has been found by a court to be incapable of receiving and evaluating information effectively or responding to people, events, or environments to such an extent that the individual lacks the capacity to (i) meet the essential requirements for his health, care, safety, or therapeutic needs without the assistance or protection of a guardian or (ii) manage property or financial affairs or provide for his support or for the support of his legal dependents without the assistance or protection of a conservator.”

To make it even more confusing, that section goes on to say, “A finding that a person is incapacitated shall be construed as a finding that the person is “mentally incompetent” as that term is used in Article II, Section 1 of the Constitution of Virginia….” Of course, the proposed amendment would eliminate that terminology from that section of the constitution.

The drafters of the proposed amendment have created a different criterion: “lacks the capacity to understand the act of voting.” It is not clear that “incapacitated” as defined in Sec. 64.2-2000 would incorporate that condition. The General Assembly may have to enact a new provision that deals with a court determining whether someone lacks the “capacity to understand the act of voting.” It would have been easier and cleaner to strike “mentally incompetent” and substitute “incapacitated” since the General Assembly has already said in current statutes that “mentally incompetent” and “incapacitated” have the same meaning. Or perhaps, the intent is that “lacking the capacity to understand the act of voting” does not go as far as “incapacitated.” Who knows?

Same-sex marriage. The interesting aspect of this proposal is that, instead of just repealing the existing provision enshrining heterosexual marriage as the only valid type of marriage, the amendment turns the current provision on its head and validates any marriage between two adults, regardless of sex or gender. It is safe to assume that this approach is being taken in order to guard against the U.S. Supreme Court overturning Obergefell v. Hodges.

The proposed amendments dealing with abortion and felons voting were reported out of committee on a party-line vote of 12-9. The vote to report the same-sex marriage proposal was 16-5, with Republicans casting all the nay votes. If the proposed amendments are passed in the current session, as seems likely, and the Republicans capture control of the House of Delegates in the November election, they could kill the amendments in the 2026 Session.