If Virginians approve reproductive rights amendment, a hearing is set for Nov. 13 to challenge it

If Virginians approve a ballot referendum on Nov. 3 to permanently protect reproductive rights in the state’s constitution, the amendment will be challenged in court on Nov. 13.

The case seeks a preliminary injunction to block the certification of the amendment referendum results by alleging that the process was not properly filed and that ballot language was misleading. 

Founding Freedoms Law Center launched the legal challenge in April, but it has been stalled since June, when advocacy group Virginians For Reproductive Freedom successfully petitioned to join as a co-defendant.

An argument of the case is whether Virginia’s retroactive repeal of old state code concerning constitutional amendment processes can hold. 

The old code would have required House of Delegates Clerk Paul Nardo to have sent copies of the amendment text to all of Virginia’s circuit court clerks to post outside their courthouses. 

The repeal, which kicked in this July after the amendments had already gone through other advancing steps, removed that part of the process. 

A similar case brought forth by Liberty Counsel was dismissed over the summer in a different court, but the group is seeking an appeal. At the time of the dismissal, Senior Assistant Attorney General Erin McNeil emphasized that state lawmakers have authority to adjust the constitution and prescribe how they do it. 

“How can the General Assembly have this authority to prescribe a process but not have the authority to change that process?” McNeil said in court. 

The argument, however, also surfaced as part of a successful effort to strike down a redistricting referendum voters had approved this past spring. That case, like the Founding Freedoms case, was advanced in Tazewell by Judge Jack Hurley. 

“Not only would this proposed abortion amendment be a disaster for policy reasons, but it would undermine trust in our democratic processes because of the flawed and deceptive means by which it will have passed. We cannot allow that to happen,” Founding Freedoms lawyer Josh Hetzler said in a statement. 

Constitutional: The amendment that could permanently protect reproductive rights in Virginia

The organization is also representing a Prince William County pastor in a newly-filed challenge to a ballot referendum to protect same-sex marriages in Virginia, on the same procedural grounds as the reproductive rights amendment challenge.

A 2015 U.S. Supreme Court case protects gay marriage nationwide, but Justice Clarence Thomas suggested revising it and contraception access after the court overturned federal abortion protections. It’s part of why state lawmakers sent the reproductive rights and marriage amendments to voters. 

Plaintiff in that case, Rev. Ben Purves, also co-signed a joint letter with 400 pastors from around the state opposing both constitutional amendments. 

Founding Freedoms Law Center doesn’t intend to challenge the third constitutional amendment, which advanced at the same time and in the same fashion as the two challenged ones.

Ballot Question Three asks voters if voting rights should automatically be restored for people with felony convictions who have completed their prison sentences. 

“We’re not personally concerned about the restoration-of-rights amendment,” Hetzler said in a phone call over the summer. “We don’t have a position on that.”