New court challenge targets Virginia abortion amendment ballot language

Tazewell County makes news once again — this time over a second lawsuit challenging a proposed constitutional amendment that would enshrine reproductive rights in Virginia.

Filed in Tazewell County Circuit Court, the suit claims the ballot language is misleading and echoes arguments in a previously filed case that challenged the legality of the amendment process.

Bluefield town council member Meagan Kade and Chesterfield County child psychiatrist Sheila Furey are represented by the Founding Freedoms Law Center, the legal arm of the conservative advocacy group Family Foundation.

“The language voters will see when they walk into the voting booth in November is engineered to obscure what this amendment actually does,” Family Foundation President Victoria Cobb said when introducing the lawsuit Thursday morning.

The plaintiffs argue the pending amendment would eliminate parental consent requirements for minors seeking abortions or surgical birth control procedures and pose safety risks by removing the  current three-physician approval threshold for abortions later in pregnancy.

Those arguments mirror concerns that Furey and the Family Foundation have raised in public comments before legislative committees, as well as objections voiced by Republican lawmakers during each step of the amendment’s approval process so far.

Existing state code requires parental or guardian consent for surgeries on minors unless a minor successfully petitions a judge for approval.

Democrats, who advanced the constitutional amendment to the ballot later this year, say it would not override existing state law but instead more firmly protect access to abortion, contraception and fertility treatment.

They have also pushed for years to eliminate the state’s three-physician requirement for certain later-in-pregnancy abortions, arguing that it can delay care for patients in rural areas facing life-threatening emergencies.

Alleging misleading representation in the ballot language, plaintiffs in the case reiterated that voters might not really know what they are voting for or against.

As a planned “no” vote, Kade said: “I could not stand by and allow my vote and the votes of many other Virginians to be effectively canceled out because the General Assembly has deliberately chosen to materially misrepresent the effects of the so-called reproductive freedom amendment.”

Kade is the second local government official to challenge the amendment. Bedford County Supervisor Charla Bansley filed a lawsuit in March,represented by Liberty Counsel, alleging that Virginia House of Delegates Clerk Paul Nardo invalidated the amendment by failing to formally send a copy of its language to circuit court clerks across the state.

But a bill signed by Gov. Abigail Spanberger in February retroactively removed that requirement from state code.

“Courts do allow laws to take effect retroactively. They just  sort of balance the damage done by retroactive laws,” Rich Meagher, a Randolph-Macon College political science professor, said when the previous suit dropped in March.

If upheld, the issue could affect all four constitutional amendments on the ballot this year. Aside from the reproductive rights amendment are referendums to restore voting rights for people with felony convictions who have served their time, same-sex marriage protections and a controversial mid-decade redistricting effort in Virginia that passed last week. A challenge to it is currently being weighed by the Supreme Court of Virginia.

Josh Hetzler, legal counsel in the latest case, said he believes the Liberty Counsel argument is “valid.”

The issue surfaced earlier in the week when the high court heard oral arguments in the redistricting suit.

“One of the points was, ‘there’s a reason why we require strict compliance with the rules for constitutional amendments, because these bind future generations.’ There was also some talk that ‘maybe people don’t necessarily get their news from the courthouse,’” he said.

Hetzler said his case is primarily focused on what he described as the “deceptive language” of the ballot amendment. He said his clients hope the court could order a rewrite before early voting begins Sept. 18.

He and Cobb emphasized they are not trying to block the amendment from reaching voters, but believe the current wording is misleading.

Hetzler also suggested the decision to file the suit in Tazewell County was strategic. With Kade as plaintiff in the area — and the Town of Bluefield located in Tazewell County — he said the venue made the case possible.

Tazewell County has already been the source of legal challenges to the redistricting amendment, cases that have since been elevated to the Supreme Court of Virginia.

“It’s no secret that the Tazewell Circuit Court has become something of a subject matter expert on ballot measures,” Hetzler said. “They’ve had a lot of time to think about it. And so we felt that we should go there.”