Virginia’s Abortion Amendment Heads to Court November 13
Will Virginia Democrats get slapped down again over their improper constitutional amendment process?
When Virginia Democrats discovered they hadn’t met the legal notice requirements for constitutional amendments, they didn’t fix the omissions. They repealed the law itself, retroactively, back to 1971. Now courts will decide if the amendments are invalid, even if passed.
The Founding Freedoms Law Center (FFLC) has filed multiple lawsuits against two constitutional amendments on Virginia’s November ballot. The state's top court slapped down Virginia's Democrat-controlled General Assembly already once this year for violating procedural requirements related to a constitutional amendment to gerrymander congressional districts. Even though the voters approved the ballot measure, the Virginia Supreme Court ruling invalidated the entire election. Will that happen again on the abortion and marriage amendments?
Article XII § 1 of the Virginia Constitution requires that the amendment process follow the path directed by law. The FFLC alleges that process was not followed and asks the court to consider the amendments invalid if passed on November 3, 2026.
The Abortion Amendment
The FFLC filed a lawsuit against the state’s radical abortion amendment that would enshrine the right for a woman to have an abortion until birth for any mental or physical health reason. The amendment requires only that the abortion doctor sign off on the murder of the baby at any stage of pregnancy. If passed, it would be one of the most extreme abortion laws in the nation.
The problem lies in the amendment's ballot language, which doesn’t portray what is in the actual legislation. The Virginia Constitution indicates it is the “duty of the General Assembly to submit such proposed amendment” to “the voters qualified to vote in elections by the people.”
The question on the ballot the General Assembly approved is:
Should the Constitution of Virginia be amended to (i) protect the freedom to make personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management, and fertility care; (ii) protect doctors, nurses, and patients from being punished for these decisions; and (iii) allow for restrictions on access to abortion during the third trimester of pregnancy except when the patient’s health is at risk or the pregnancy cannot survive?
Despite the ballot language claiming restrictions on third-trimester abortions, the legislation actually prohibits any restrictions or penalties, including consent for minors or prosecutions against anyone assisting with an abortion. For example, if a teenager sought an abortion from a shady street corner abortionist and harmed the mother, the abortionist would be shielded from any prosecution.
The FFLC lawsuit also points out that the ballot language "manipulatively, dishonestly, and fraudulently implies to voters that… the Proposed Amendment would increase Virginia’s ability to regulate third trimester abortions."
The Virginia Constitution requires the General Assembly to submit the proposed amendment to the voters, not a false political portrayal of the legislation.
A Tazewell County judge is set to hear the case on November 13. Josh Hetzler, the executive director of FFLC, said, "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."
Same-Sex Marriage Amendment Challenge
Filed in Prince William County on behalf of Pastor Benjamin Purvis, another FFLC complaint pertains to the constitutional amendment regarding the definition of marriage. The lawsuit doesn’t challenge the "wisdom or policy merits" of the proposed amendment but the process by which it was placed on the ballot.
The main challenge to the proposed marriage amendment is that voters were not properly notified and informed of the proposed amendment after it was first passed in 2025, as required by Virginia Code 30-13.
Specifically, the Clerk of the House of Delegates, currently G. Paul Nardo, was required to publish and distribute copies of the proposed amendment to the clerks of circuit courts. Those clerks were then required to post a copy "at the front door of the courthouse" and make another copy "available for public inspection," no later than three months before the intervening general election of members of the House of Delegates. Nardo and Jacqueline Smith, Clerk of the Circuit Court for Prince William County, are named defendants in their official capacities. Reportedly, none of these required public notifications happened.
The state legislature must pass proposed amendments to the constitution in two separate sessions, with an intervening election between them. That election would have been November 4, 2025. The intent of the notification requirements is to inform voters of the precise language of the proposed amendment before the intervening general election, so they have an opportunity to select new representatives if they are displeased.
The Clerk of the House of Delegates is also supposed to report to the General Assembly at its next session the actions taken related to these requirements. That report must be published in the Journal of the House of Delegates. These provisions were not met.
In an attempt to get around these legal requirements after the fact, the General Assembly voted to repeal Code 30-13 in 2026 after the pivotal November 2025 general election. Then lawmakers made the provisions of the repeal retroactive and effective beginning July 1, 1971, which essentially wiped out Code 30-13, as if it never existed.
The FFLC lawsuit points out that when the proposed amendment was first passed in 2025 and throughout the intervening election, Code 30-13 was in full force and effect.
Plaintiff Purvis was not aware of the language of the proposed amendment during the November 2025 general election and could be negatively impacted by the legislation.
The same-sex marriage amendment as passed by the General Assembly removes a provision found within the initial draft protecting clergy who object to officiating certain marriage ceremonies. If this amendment becomes law, Purvis believes he and other clergy licensed to perform marriage ceremonies in the state could be targeted and prosecuted for their religious beliefs that marriage should be only between a man and a woman.
Until the courts rule, the outcome of the November 3 vote will remain uncertain, whichever way voters cast their ballots.
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