The Words That Transfer Power to the Courts

Question 1 is often described as protecting medical decisions. Its language does more. It would create a “fundamental right to reproductive freedom,” forbid Virginia from directly or indirectly burdening that right, require any restriction to survive a compelling-state-interest test using the least restrictive means, and declare the provision self-executing.

Every one of those phrases matters.

A fundamental right receives the highest level of constitutional protection. Once abortion is placed in that category, the burden shifts. Virginians and their elected representatives would no longer begin with the ordinary authority to debate and regulate abortion. The Commonwealth would have to defend each challenged protection against a constitutional presumption favoring the right.

“Compelling state interest” sounds protective until we read how the amendment defines it. The state’s interest must be limited to maintaining or improving the health of the person seeking care, must follow accepted clinical standards, and must not infringe autonomous decision-making. The unborn child is not named as a separate life the Commonwealth may protect. The amendment defines the legal battlefield before the first lawsuit.

“Least restrictive means” raises the standard again. It is not enough for a law to be reasonable, useful, or supported by voters. The government must prove no less burdensome alternative could accomplish its permitted objective. Parental-consent requirements, informed-consent laws, clinic standards, waiting periods, viability protections, and other safeguards could all be challenged under that demanding test.

Then comes the phrase “self-executing.” That means the constitutional provision would not sit quietly while the General Assembly decides how to implement it. Individuals could invoke it directly in court. Lawyers would not need to wait for a new statute before asking judges to strike down existing laws or block future ones.

This is how power moves. A disputed policy question leaves the legislature, enters the Bill of Rights, and becomes constitutional litigation. Virginians may still elect delegates and senators, but judges would decide whether the laws they pass satisfy the amendment’s controlling standards.

We should not confuse this concern with hostility toward courts. Courts must enforce the Constitution. The problem is writing broad language that commands them to treat abortion as fundamental while failing to recognize unborn life as an independent constitutional interest. Judges will apply the words we approve, not the assurances offered during a campaign.

Question 1 is not simply about preserving what Virginia does today. It creates new legal authority, a new presumption, and a new pathway for litigation. Once those words enter the Constitution, correcting their consequences would require another constitutional amendment.

We should keep abortion policy accountable to the people and their elected representatives. We should reject language that transfers the final authority to courts before Virginians understand what the words mean.