New lawsuit challenges 'deceptive' language in Virginia abortion amendment

The Founding Freedoms Law Center has filed a lawsuit asking the court to declare that the language on an abortion ballot measure set to go before Virginia voters this November is unconstitutional because it is misleading.

The suit also seeks a permanent injunction barring enforcement of the amendment if it is approved.

Key Takeaways:

• The Founding Freedoms Law Center has filed a lawsuit, saying the upcoming referendum that would enshrine abortion as a constitutional 'right' in Virginia is unconstitutional, because the ballot measure's language is misleading.

• Plaintiffs say the constitutional amendment would strip many protections currently in place, including parental consent laws and abortion facility safety standards.

• This is the second lawsuit filed against the upcoming ballot measure.

The Details:

The plaintiffs in the lawsuit, which was filed April 30, include the Association of American Physicians and Surgeons, the Virginia Medical Freedom Alliance, and Bluefield Town Council member Meagan Kade.

At issue is the language of the proposed constitutional amendment, which will go before voters for approval this November. If the amendment passes, it would enshrine the "right" to abortion in the state's constitution.

The ballot question states:

“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?”

It's this language that the Founding Freedoms Law Center and Family Foundation says is misleading, as it fails to inform voters that if the measure passes, it would likely eradicate a number of commonsense safeguards and restrictions.

Courthouse News Service reports:

The plaintiffs claim the question fails to inform voters that the amendment would, in their words, eliminate parental notifications and consent before a minor obtains an abortion or gender-affirming surgery; strip Virginia of its ability to enforce statutory rape laws, by enshrining a right to consensual sexual activity without age limits; allow those without licensees to perform abortions with full immunity from state penalties; end Virginia's ability to set health standards for abortion facilities; and block the state regulating commercial surrogacy.

“No matter where one stands on the issue of abortion, they should know what the amendment will do to abortion law in Virginia,” said Victoria Cobb, Family Foundation president. “And what it’s going to do it’s going to overturn our parental consent for abortion, which is actually majority supported in Virginia.”

“The law is clear, proposed constitutional amendments placed on the ballot must be explained in a neutral manner,” explained Founding Freedom Law Center attorney Josh Hetzler. “The question posed to the voters cannot be deceptive or fraudulent, but this abortion amendment ballot language deceives voters on issues of major importance.”

Zoom Out:

This isn't the first lawsuit against the ballot measure. In March, Liberty Council also filed a suit, alleging that state election officials failed to follow proper protocol when advancing the referendum, thereby making its approval "void."

Interestingly enough, though not specifically mentioned in the lawsuit, use of the term "pregnancy" to refer to a preborn child in the phrase, "... except when the patient’s health is at risk or the pregnancy cannot survive" (emphasis added) is vague and medically inaccurate.

The Bottom Line:

As Hetzler explained, this latest lawsuit seeks to clarify the language — not remove the ballot question altogether.

“We are not asking a court to take this question off the ballot," he said. "We are asking the court to do what only a court can do, declare that the ballot language as written is unconstitutional, and to permanently enjoin enforcement of the amendment if it passes. Proposed constitutional amendments must be explained to voters neutrally and accurately. The question Virginians will be handed in November fails that test.”