MEAGHER: Our first panel will discuss Ballot Question 1, a proposed amendment to the Constitution of Virginia that concerns what its sponsors call, "A fundamental right to reproductive freedom."

Joining us is Whittney Evans, Features Editor at VPM News, and Lois Shepherd, who is the Wallenborn Professor of Biomedical Ethics, and a Law Professor at the University of Virginia, where she directs the programs in law and medicine at the Center for Health, Humanities, and Ethics.

Please join me in welcoming our panel.

(audience applauding) So, Whittney, let's start with you, and start with the basics here.

What does this amendment propose to do?

How is it going to change the constitution?

EVANS: Well, so there are no fundamental protections for personal decision making when it comes to reproductive healthcare at the federal level, and therefore at the state level, unless your state has passed an amendment like this, which would enshrine the right to abortion and reproductive healthcare in the state's constitution.

There are some other states where high courts within those states have also made that determination.

But here in Virginia, we're talking about an amendment to the constitution.

And it's not just about abortion, it's about miscarriage management, it's about postpartum care, it's about access to birth control.

All of those things would be protected under this amendment, although it does allow for some restrictions on access to abortion during the third trimester.

That's specifically if the patient's health is at risk or the pregnancy isn't viable.

MEAGHER: And there's additional provision about healthcare providers as well, right?

So there's a lot to unpack here, but Lois, I was hoping you could start by giving us a little bit of the broader context.

So why this amendment and why now, here in Virginia?

SHEPHERD: Well, I mean, I think Whittney's exactly right.

It's because Roe v. Wade was overturned.

So Roe v. Wade in 1973 established the fundamental right to terminate a pregnancy.

And that was part of a broader, sometimes we call them privacy rights, or liberty interests that encompassed more than abortion about the right to make decisions about your body.

And in 2022, in the Dobbs Decision, the Supreme Court overturned Roe v. Wade, and the way it did so was not merely about abortion, but called into question other rights to make decisions about one's body, which would include, for example, contraception.

And so I think that's the kind of the legal context is so in the past, you wouldn't need something like this for advocates for these rights in the Virginia constitution because the US constitution is supreme.

So it would be protecting those rights.

And so there's kind of a vacuum right now.

So I think that's why, and I think those advocates or backers for the amendment are seeing what's happening in other states with a lot of restrictions.

MEAGHER: Yeah, and I want to follow up on something you just said, which is that other rights, things like contraception, have been thrown into question, right?

So the Dobbs decision doesn't concern contraception.

So how does a decision about abortion at the national level make these other rights seem to be at risk or in question in other states?

SHEPHERD: Well, basically the reasoning in the Dobbs decision that's laid out very clearly is that the Constitution doesn't protect the right to terminate a pregnancy, but it also doesn't protect any of those kinds of rights that would not have been recognized as protected by the 14th Amendment.

That's where the abortion right was found, or reproductive rights were found in the 14th Amendment, that were not understood at the time of passage of the amendment to be protected by them.

So when the 14th Amendment was adopted after the Civil War, that was a time when people were not talking about a right to abortion, they also weren't talking about a right to contraception.

In many states, contraception was illegal until the Supreme Court in the 1960s and 70s started protecting the right to contraception.

MEAGHER: Yeah.

So if I can sum that up, right?

It's the idea that the legal reasoning behind Dobbs means that other rights besides abortion rights or other procedures, other healthcare issues besides abortion become in question.

And that's one of the reasons why this amendment concerns a bit more than just abortion.

EVANS: Lois and I were talking about this earlier, about how there are plenty of cases right now that sort of encapsulate the reason for an amendment like this.

There are states that are requiring the burial of fetal remains after a miscarriage.

There are states where people are being forced to have a C-section.

And the intention of this amendment is to solidify the right for someone to make those decisions about their body, whether it's prenatal care, again, childbirth, postpartum care, all of those things could be impacted by this amendment.

MEAGHER: So let's actually unpack a few of the specifics of things that could be impacted by this amendment.

What is the current law concerning reproductive healthcare and what would change as a result of the amendment passing?

Whittney, I'll start with you.

EVANS: So right now the current law is, you can receive an abortion up to 26 weeks and 6 days in the state of Virginia, and you can receive a third-trimester abortion under very, very specific circumstances, and a minor needs either permission from a parent or a judge.

And I know Lois can talk at length about that.

SHEPHERD: Yeah, sure.

So how would it change is what you're asking.

And one thing is the laws that are on the books now, if this amendment's passed, they wouldn't automatically go away, so they'd have to be challenged and then a court would have to decide, "Oh, this statute that's been in effect a while is now invalidated because it's in conflict."

But right now we also, Virginia law bans third-trimester abortions except for the "health or life" of the pregnant patient.

And it has a requirement for that to be determined, that "health or life" threat to be determined by the physician and two additional physicians.

And so I think reasonably one could read the language of the amendment to be in conflict with that in the sense that you probably couldn't justify the two other physicians, just the way that the language of the amendment is written, that it would be like other healthcare decisions that are made, doctors all the time are determining whether someone's health or life is threatened by something, and they don't need two other physicians to come in and agree.

And so it would be treated like that.

And I can speak to the minors now also if you'd like, which is that, so in Virginia now, as in many states, for a minor to get an abortion, they have to get the consent of a parent.

But the Supreme Court in the 1970s decided that minors have abortion rights just like adults have abortion rights, but the way they exercise them, it adds a complication, right?

Minors don't consent to their own tonsillectomies, right?

Parents consent for the medical procedures of their children.

And so the Supreme Court in a case in the '70s, Belotti v. Baird, said that minors also have a right to abortion.

States can require the consent or notice of a parent, notice to a parent, or consent of a parent, but you have to allow a judicial bypass and a minor can go before the court and seek a judicial order that says that they are mature enough to make the decision for themselves or that the abortion is in their best interest.

And that, because that was the decision of the Supreme Court, Virginia law, the statute in Virginia follows that as it did around the country.

And so some have raised the question, "Would those still be in effect?"

MEAGHER: And will they still be in effect, that's the question, right?

SHEPHERD: Right.

And again, things aren't automatically invalidated and I imagine those might be challenged.

And I don't think we know whether those would be in effect or not, or if something else would be in effect.

But it's not merely the case that because the language says that an individual has this right, that doesn't, I don't think at all, resolve the question of how it's exercised for a minor.

Except, I would say, I think the language in the statute would mean that if you're going to have some restrictions on that like parental consent, or notice to parents, it has to be for the benefit of the minor and not be on some kind of parental rights grounds.

So that would be my guess, but that's a guess.

It's broad language and these decisions are played out in courts.

MEAGHER: Yeah, and so we're not all law professors here?

And so this is why I think there's been some question and concerns about some of the language in the amendment.

And Whittney, there's been some other concerns raised by opponents of this amendment as well about some of the other phrases and bits of language that are in the amendment, is that right?

EVANS: Right, we've talked to people who are not in favor of this amendment and one of their arguments is that some of the language is vague and undefined.

Terms like "least restrictive means," "autonomous decision making" are making some people uncomfortable because it's vague and undefined as they see it.

And it's my understanding though that that's sort of part and parcel of a constitutional amendment.

It must remain to some degree somewhat vague so that it could be further refined in the courts when necessary.

MEAGHER: Yeah, is that right Lois?

SHEPHERD: Yes, I mean, I think that's the case.

I mean, it's a lot more specific than the 14th Amendment's protection under the Supreme Court's decision in Roe v. Wade.

There it just said that individuals have rights to life, liberty, and property that can't be infringed without due process of law.

So compared to that, from which we had an abortion right for 50 years, this is really pretty specific.

MEAGHER: And so, Lois, I guess I have a big picture question before we get back into some of these details, which is "Why an amendment for this?"

Right?

And you're getting at this with some of these, sort of the vague question, the big questions of rights.

Why not a law?

Why can't we just, if proponents want there to be reproductive rights and they want there to be protection for prenatal care, why can't they simply get more statutes passed?

There're probably friendly faces in the General Assembly.

Why do they feel like they need an amendment here?

SHEPHERD: I think you can just look at Virginia history to answer that question, which is that we've had laws that required a 24-hour waiting period where you had to see a doctor and then you had to wait and get certain information and then you had to come back 24 hours later or beyond before you were able to terminate a pregnancy, and also a required ultrasound.

And so there have been laws like that in Virginia that were then repealed, right?

And then we could just turn around, legislature changes, we could bring them back again.

And so this kind of flip-flopping with respect to the legislature and passing things by majority.

And that's why generally when we think about rights, we think about something more than simply a statutory right.

When we think about human rights or we look to some other avenue besides a statute and we look to our constitutions to enshrine those.

MEAGHER: And so I want to, you're talking about rights here.

I want to bring up this point here that this is a new right to the Virginia Constitution, to the Constitution of Virginia, and would add a new right to our Bill of Rights.

First of all, Virginia has a constitution.

We all know this, yes?

Good.

Not everyone does, right?

And that constitution has a Bill of Rights, and this would be the first right added to that constitution, ironically, since marriage was added, which we'll talk about in our next panel.

Do you think that Virginians think about reproductive rights in this sense that it is a fundamental right?

I mean, Whittney, what does your reporting tell us about this?

EVANS: Well, I've been reporting on this for many years now, specifically in Virginia.

And over the years, Virginians have overwhelmingly supported the right to an abortion generally.

And just in the past couple of years, there have been polls that show a majority 62-66% support this amendment specifically.

MEAGHER: And, Lois, what do you think about this idea of this reproductive rights as a fundamental right from your law professor perspective?

SHEPHERD: The Supreme Court of the United States said it was a fundamental right 50 years ago.

And so we lived with that understanding for many, many years.

And then now over the years, I mean, you were asking about the broader context in the beginning.

Over the years from the 1973 Roe v. Wade opinion, that right did get weakened, OK?

And so it wasn't, didn't have that kind of language of you had to have a "really compelling interest" in order to regulate.

Over time, the Supreme Court had watered down that right.

But thinking about it as a right, even if the contours of it had changed, I think is something that we're very familiar with.

In fact, I would say even in those states that have changed their laws, they're still thinking about a lot of this in terms of rights, although they're raising up fetal rights and personhood rights, fetal personhood rights.

But they're still, as far as kind of your framework, they're thinking about these kinds of decisions in terms of rights.

MEAGHER: So I do want to go back a little bit to some of the specifics and particularly some of the things that opponents object to in the language.

And not just the language, I think also the results, right?

There have been some concerns raised by folks who oppose the amendment about the number of abortions in Virginia.

And so while this amendment is supposed to protect legal rights, the suggestion by some opponents is that it might actually lead to more illicit abortions in Virginia.

Have you heard this argument, Whittney?

EVANS: Yeah, we've spoken to some people who are opposed to this amendment who say that this would somehow undermine the state's ability to regulate abortion.

And we know from speaking to experts like Lois that there does not appear to be any language in this amendment that would preclude the state from regulating reproductive rights, including abortion, in the same way that it would regulate other types of healthcare in the state.

MEAGHER: Right, so they're looking at the language in here about individual rights, and you mentioned earlier the "autonomous decision making," and suggesting that that goes a step further than previous law to make the rights of the individual trump everything, and so the state could no longer regulate it.

So, Lois, you've touched on this, but can you give us a little bit more context on that kind of argument, that kind of worry that the language in here is so strong.

In fact, some opponents have said this is more extreme than Roe v. Wade because of its commitment, the language they say, "The commitment to individual rights."

So what's your response to that kind of concern?

SHEPHERD: I mean, I don't think - it is almost Roe v. Wade.

I mean, it is that close to what we had for a long time, but like I said, that had weakened over the years.

Now, if you're concerned, I think we need to distinguish between regulations that are targeted towards abortion providers, and opponents of abortion rights... Supporters of abortion rights have caused some of those kinds of regulations, trap laws, targeted regulation of abortion providers.

And we have had a proliferation of those around the country where, for example, you would require a doctor, a doctor who performed abortions to have admitting privileges at a local hospital, which would be impossible practically to get because they never sent patients there, because abortion was a very safe procedure.

And it was really the intention was not to provide safety or protect the health of the pregnant women, it was really to reduce the number of clinics.

So that kind of regulation, those kinds of laws would, I think, not be upheld under a statute like this.

But regular laws like for certain kinds of procedures with certain risks that are comparable, that you have a licensed provider, it's the practice of medicine.

I just don't see that argument going anywhere that you couldn't have the same kinds of regulations you'd have for surgeries, and prescribing and for surgeries and for everything else.

It's the same, it's the idea I think that this amendment is trying to get at is that you can't single out reproductive care for special rules that are not for the benefit of the patient.

EVANS: And I think it's important to point out what's happened in states like Ohio that also added an amendment like this to that state's constitution.

That, since its passage three years ago, they're slowly chipping away at those laws and regulations that don't align with the amendment that provides for reproductive access and freedom.

And so those are being argued in court and they're being struck down, things like a 24-hour waiting period.

So you can see how, as I said earlier, it's going to be further refined for years after this, should this amendment pass, it would continue to be refined in the courts.

MEAGHER: Yeah.

I think that's an important takeaway from both of your comments here tonight, right?

This is the first step, not the last step in what will probably be a long process of defining reproductive rights and access in the Commonwealth.

Whittney Evans, Lois Shepherd, thank you so much.

MEAGHER: Thank you.

Please join me in thanking our panel.

(audience applauding) (bright music)