Legal scholar warns Virginia abortion amendment is ‘extreme and deceptive’
Ed Whelan argued in a National Review op-ed that the proposed constitutional amendment could expand access to abortions in the third trimester, invalidate parental consent requirements, and have other consequences not explained to voters.
A conservative legal scholar is warning Virginia voters that a proposed constitutional amendment on the November ballot would dramatically expand abortion “rights” and produce consequences that its supporters have not disclosed.
Ed Whelan, a senior fellow at the Ethics and Public Policy Center, argued in a Sept. 8 National Review op-ed that Amendment 1 could expand access to abortion throughout all nine months of pregnancy, invalidate the state’s parental consent requirement, and prevent lawmakers from enforcing common restrictions on abortion.
Virginia voters will decide the measure during the Nov. 3 general election. The proposed amendment would add a “fundamental right to reproductive freedom” to the state’s constitution, covering “prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care.”
Whelan argued that the measure’s effects would extend far beyond what voters are likely to understand from the ballot question and the state’s accompanying explanation, outlining five principal concerns about the amendment.
“If Amendment 1 merely embedded in the state constitution the protections for abortion that already exist in state law, it would be easy to understand why supporters of abortion would vote for it,” he wrote. “But Amendment 1 would have extreme effects far beyond what its proponents acknowledge or, in some cases, perhaps even recognize.”
Five potential consequences of Amendment 1
First, Whelan argued that the amendment would make Virginia’s existing limits on third-trimester abortion difficult to enforce.
Under current Virginia law, an abortion after the second trimester generally requires the abortionist and two consulting physicians to certify that continuing the pregnancy would likely result in the mother’s death or “substantially and irremediably” impair her physical or mental health.
Because the amendment would constitutionalize an exception for abortions deemed necessary to protect a woman’s physical or mental health, Whelan contended that abortion providers could interpret that exception broadly.
“For many abortionists, that standard will be no limit at all,” Whelan wrote. “As longtime (now retired) third-trimester abortionist Warren Hern put it, ‘I will certify that any pregnancy is a threat to a woman’s life and could cause grievous injury to her physical health.’”
Second, Whelan argued that the amendment could invalidate Virginia’s parental consent law for abortions performed on minors.
Virginia law generally prohibits a physician from performing an abortion on a minor without the consent of a parent. Because Amendment 1 gives “every individual” a “fundamental right” to reproductive freedom, Whelan argued that courts could find the existing parental consent requirement unconstitutional.
Third, Whelan argued that the amendment could shield people who help someone obtain an abortion from prosecution — even when their actions contribute to serious injury or death — allowing them to “escape legal responsibility for botching an abortion.”
He pointed to a provision in the amendment stating that Virginia cannot “penalize, prosecute, or otherwise take adverse action” against anyone for “aiding or assisting another individual in exercising such other individual’s right to reproductive freedom.”
Whelan offered a hypothetical example of a boyfriend who illegally obtains abortion pills for a girl who later dies because she had an undiagnosed ectopic pregnancy or was too far along in pregnancy for the drugs.
“No matter how egregious the boyfriend’s conduct, Virginia could not take any adverse action against him,” Whelan wrote.
Fourth, he argued that the amendment’s protections for contraception and fertility care could have consequences beyond abortion, including invalidating parental consent requirements for sterilization procedures on minors.
Virginia law defines contraception to include “sterilization procedures,” and state law generally does not allow minors to consent on their own to sexual sterilization, according to Whelan.
Whelan argued that the amendment “would create an individual’s fundamental right to sterilization, and any burden on an individual’s right could be justified only by a ‘compelling state interest’ — an interest that ‘does not infringe on that individual’s autonomous decision making.’”
Finally, Whelan suggested that minors seeking puberty blockers or cross-sex hormones could attempt to characterize the treatments as “fertility care” and challenge parental consent requirements on that basis.
Whelan noted that it is possible courts do not adopt his readings of the amendment, but argued that the “fact of the matter is that courts have been far more inclined to impose expansive understandings of ‘reproductive freedoms’ than narrow ones.”
He concluded by urging voters to reject the measure because of its potential unintended consequences.
“Amendment 1 would in practice radically expand the availability of third-trimester abortions, and it would eliminate the right of Virginia parents to consult with their daughter before she has an abortion,” Whelan wrote. “It also would enable boys and girls to obtain puberty blockers, cross-sex hormones, and surgical sterilization without their parents’ consent.”
Bishop Barry Knestout of Richmond, Virginia, has also urged Catholics to oppose Amendment 1, calling the referendum a “grave moral choice” and warning that it would threaten the protection of unborn life.
>> Virginia bishop warns abortion amendment presents ‘grave moral choice’ <<
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