by Emilio Jaksetic
House Joint Resolution 1 (HJ 1) and Senate Joint Resolution 1 (SJ 1) have been prefiled for consideration of the Virginia General Assembly to propose an amendment to the Virginia Constitution captioned “Article I, Bill of Rights, Section 11-A. Fundamental right to reproductive freedom.” A copy of HJ 1 is available at here and a copy of SJ 1 is available here.
Virginians need to (1) carefully consider the danger that vague and undefined terms in the proposed constitutional amendment could be exploited to advance an agenda that extends far beyond just abortion rights; and (2) consider the need for an alternative proposed amendment that is compatible with compromises likely to be acceptable to a majority of Virginians.
HJ 1 and SJ 1 do not define the meaning or scope of reproductive freedom that will covered by the proposed amendment. Without a definition of reproductive freedom, adoption of the proposed amendment would not just establish a fundamental right to abortion, but would have the effect of establishing a fundamental right to birth control, sterilization, surrogate pregnancy, in vitro fertilization, cryogenic storage of human sperm and human ova, and any other existing or future procedure pertaining to or affecting human reproduction. Such a broad, open ended amendment to the Virginia Constitution would be unwarranted and unwise.
HJ 1 and SJ 1 do not define the meaning or scope of health. Without a definition of health, adoption of the proposed amendment would not just cover situations where a person’s physical health is involved, but would have the practical effect of allowing people to claim that health can include economic health, emotional health, environmental health, mental health, public health, social health, and anything else that might be characterized as directly, indirectly, or incidentally affecting a person’s health. (To appreciate the wide variety of claims about what constitutes health, perform a search on Google using the phrase “types of health.”)
As noted above, HJ 1 and SJ 1 propose to declare that the undefined reproductive freedom is a fundamental right. Adoption of the proposed amendment could allow people to invoke that fundamental right broadly to include demands for the following: (1) taxpayer funding of abortions and any other procedure pertaining to human reproduction, (2) prohibition of any person claiming a right to refuse to perform or participate in an abortion or any other procedure affecting human reproduction based on their religious beliefs or personal convictions, and (3) prohibitions or restrictions on any person or organization seeking to convince or persuade people to forego, or seek alternatives to, abortion or any other procedure pertaining to human reproduction.
Since the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (slip opinion issued June 24, 2022) overruled the Supreme Court decision in Roe v. Wade, 410 U.S. 113 (1973), Democrats have claimed that they are merely trying to codify the right to abortion as set forth in Roe v. Wade. However, their proposals go far beyond the terms of Roe v. Wade, and even ignore passages in Roe v. Wade that clearly state that States may legitimately impose some limits on a right to abortion. For a discussion of the effort of Congressional Democrats to misrepresent their legislative proposals as merely “codifying” Roe v. Wade, see my article “The ‘codify Roe v. Wade’ misrepresentation” (posted on The Bull Elephant, October 10, 2022) at https://thebullelephant.com/the-codify-roe-v-wade-misrepresentation.
HJ 1 and SJ 1 do not “codify” the substance of the Roe v. Wade decision. Indeed, their proposed language goes far beyond the scope of abortion rights sanctioned by the Supreme Court in Roe v. Wade. Any proposal that claims to merely “codify” the Roe Wade decision should be faithful to the specific language and limits of that decision, not just a superficial invocation of its name to disguise a broader, radical abortion-on-demand-at-any-time agenda.
As a practical matter, it will be difficult to defeat the proposed constitutional amendment with a purely negative campaign that does not offer a reasonable alternative proposal. Republicans in the General Assembly should not just oppose HJ 1 and SJ 1. Instead, they should oppose HJ 1 and SJ 1 and offer a reasonable alternative that can be acceptable to a majority of Virginians, including Republicans, Democrats and independents. Failure to do so will allow Virginia Democrats (1) to label Republicans and anyone else who opposes the proposed amendment as extremists who have no regard for women, and (2) to later exploit undefined terms in the proposed amendment to seek to enact sweeping legislation that goes far beyond anything sanctioned in the Supreme Court’s Roe v. Wade decision.
The following language is offered to suggest a framework for Republicans in the General Assembly to consider in drafting a balanced alternative to HJ 1 and SJ 1.
Proposed amendment to Virginia Constitution
Article I, Bill of Rights, Section 11-A. Abortion.
1. Except as qualified by subsection 2 of Section 11-A, any law, ordinance, or administrative regulation:
(a) shall not prohibit or penalize a woman who seeks an abortion in cases where the pregnancy is the result of incest or rape.
(b) shall not prohibit or penalize a woman who seeks an abortion when a licensed, qualified medical professional determines that an abortion is necessary to save the life of the pregnant woman or to prevent the woman from suffering a nontrivial harm to her physical health.
(c) shall not prohibit or penalize any licensed, qualified medical or healthcare professional from giving advice or guidance concerning abortion, or performing or participating in an abortion.
(d) shall not penalize any woman who chooses to travel outside Virginia to obtain an abortion.
(e) shall not penalize a licensed, qualified medical or healthcare professional who travels outside Virginia to perform or participate in an abortion.
(f) shall not require or compel any person or organization to perform or participate in an abortion if the person or organization has religious beliefs or personal or institutional convictions against performing or participating in an abortion, nor penalize any such person or organization.
(g) shall not prohibit or penalize any person or organization from offering advice, guidance, or services concerning alternatives to abortion.
2. Nothing in subsection 1 of Section 11-A shall be construed or interpreted to:
(a) bar any prohibition or penalty being applied to a licensed, qualified medical or health care professional if the professional violates generally applied professional standards, engages in professional malpractice, violates a woman’s right to informed consent, acts with culpable negligence, engages in fraud, or acts in breach of contract.
(b) bar any prohibition or penalty being applied to any person or organization that solicits, facilitates, performs, or participates in an abortion if the person or organization violates a woman’s right to informed consent, acts with culpable negligence, engages in fraud, or acts in breach of contract.
(d) bar any prohibition or penalty being applied to any person or organization that offers advice, guidance, or services concerning alternatives to abortion if the person or organization doing so violates a woman’s right to informed consent, acts with culpable negligence, engages in fraud, or acts in breach of contract.
3. Nothing in Section 11-A shall be construed or interpreted as: (a) allowing any person (including a medical or health care professional) to kill, or allow to die, any child who survives an attempted abortion; or (b) precluding the General Assembly from enacting legislation to protect the life of any child who survives an attempted abortion, or to protect the life of any child from infanticide.
4. Nothing in Section 11-A precludes the General Assembly from enacting legislation to require women to make a decision to undergo an abortion before the 17th week of her pregnancy, except that any such legislation cannot prohibit or penalize a woman who decides to have an abortion after the 16th week of pregnancy if a licensed, qualified medical professional determines that such an abortion is necessary to save the life of the pregnant woman or to prevent the pregnant woman from suffering a nontrivial harm to her physical health.
5. Nothing in Section 11-A shall be construed or interpreted as implicitly or impliedly precluding application of generally applicable provisions of civil or criminal law that are not in direct conflict with Section 11-A just because the case or situation involves an abortion.
6. Nothing in subsection 1 of Section 11-A shall be construed or interpreted as limiting, restricting, or qualifying the rights of Virginians to exercise their rights to free speech and religious liberty as protected by Article I, Section 12 and Section 16 of this Constitution.
Republished with permission from The Bull Elephant.