Virginia’s children deserve protection before and after birth

I lived much of my life in the great Commonwealth of Virginia, and all my children were born there. That is why Question 1, the constitutional abortion amendment on November 3’s ballot, concerns me as both a father and a constitutional scholar. Beneath its language of freedom lies a threat to children before and after birth.

My children’s birth certificates recorded their arrival, not the beginning of their humanity. Their worth did not depend on being wanted. Every human being holds inherent dignity. Neither disability nor dependence diminishes that dignity. The vulnerability of an unborn child heightens our obligation to protect her. A society that makes human dignity contingent on another person’s preference abandons the principle that every human being holds inherent value and deserves equal protection under the law.

“For thou hast possessed my reins: thou hast covered me in my mother’s womb. I will praise thee; for I am fearfully and wonderfully made.”— Psalm 139:13–14

Virginia’s Constitution recognizes inherent rights, including life and liberty, that no political compact may strip from posterity. The right to life is pre-political. It precedes government. So does parents’ authority to direct their children’s upbringing, arising from their responsibility to nurture and protect. Parents are entrusted with their children’s care. A majority may amend a constitution. It cannot legitimately vote another human being’s inherent worth out of existence.

That is precisely what makes Question 1 so troubling. It does something far more consequential than add another constitutional right. It changes the foundation on which rights are understood. Human life possesses inherent worth. Parents possess a deeply rooted liberty, joined with a profound responsibility, to raise, guide and protect their children. Question 1 would place a newly defined principle of individual autonomy above those preexisting rights and relationships.

The amendment professes to invoke strict scrutiny, the demanding constitutional test requiring narrowly tailored laws to serve compelling government interests. But then it rewrites the test itself. Under its general rule, the amendment sharply narrows what may count as a compelling state interest, while defining the remaining health interest in broad and opaquely vague terms. Even that interest must not infringe that person’s autonomous decision making. The amendment, therefore, makes autonomy the constitutional measure by which other rights and responsibilities are judged.

That is a profound inversion of our constitutional order. The right to life does not arise from another person’s willingness to recognize it. A parent’s freedom and responsibility to care for a child do not exist at the sufferance of the child’s autonomous choice. Yet under Question 1, protecting unborn life is not recognized as sufficient under the amendment’s general test. Nor are preserving the parent-child relationship, respecting parents’ constitutional rights, or enabling parents to fulfill their duty to protect their children identified as independent compelling interests.

The practical consequence is difficult to miss. The unborn child is not simply weighed against another constitutional interest. She is denied an independent place on the scales. And when a minor is involved, parental consent can itself become the constitutional problem because consent necessarily limits the child’s autonomous decision making. What our law has long understood as a parent’s fundamental liberty and responsibility is thus recast as an interference that must justify itself before the child’s newly elevated constitutional autonomy.

Citizens in Michigan recently witnessed the consequences of constitutionalizing unfettered self-autonomy rights over the protection of unborn life. After Proposal 3 passed, lawmakers repealed Michigan’s law prohibiting the killing of an unborn child and dismantled special health and safety safeguards governing abortion facilities. In 2025, a state court invalidated the mandatory waiting period, prescribed informed consent disclosures and restrictions reserving abortions to physicians. The court expressly rejected protecting fetal life before viability as a compelling interest as redefined by the new constitutional provision. “The result was exactly what leading proponents had sought. Statutory protections became unconstitutional burdens.”

Virginia’s proposal separately permits third trimester regulation, but its exceptions wholly swallow that safeguard. The State cannot prohibit abortion when a physician judges it medically indicated to protect the mother’s life or physical or mental health, or determines the unborn child  is not viable. Its health exception omits current Virginia law’s requirement of substantial and irremediable impairment.

Question 1’s broad protection for those who “aid or assist” another person in exercising the new constitutional right raises a separate and troubling question when the child survives an attempted abortion. The amendment provides that the Commonwealth may not “penalize, prosecute, or otherwise take adverse action against any individual” who provides such assistance with the individual’s voluntary consent. Yet nothing in the provision provides that protection ends when an attempted abortion results in a child being born alive. Indeed, nothing prevents a court from reading the amendment’s categorical protection to broadly immunize infanticide. A constitutional provision governing matters of human life and death should not open the door to elevate personal autonomy protections high enough to shield conduct toward a child born alive, thereby raising the gravest concern of legitimizing infanticide.

The concern does not stop with the unborn child. It reaches into the family itself. Question 1 extends its new constitutional protection to “every individual,” which necessarily includes minor children, while providing no express protection for parents or preserving parental consent. That is, a minor’s decision to obtain an abortion receives constitutional protection while her parents’ responsibility to guide, protect and care for her receives no recognition. The amendment’s prohibition on discrimination also enables challenges to laws requiring parental notice or consent simply because those laws treat minors differently from adults.

Consider an 11- or 12-year-old girl who identifies as a boy, says she never wants to become pregnant or give birth, and seeks help from a public-school counselor. The counselor changes her pronouns and presentation and works with physicians to facilitate treatment affecting her future fertility, all without notifying or obtaining consent from her parents. Question 1 expressly includes “fertility care,” protects autonomous decision making, and shields those who aid or assist another in exercising the new right. A court could therefore conclude that such treatment falls within constitutionally protected reproductive freedom, that parental-consent requirements unlawfully burden the child’s autonomous decision making, and that the counselor and physician are protected from state penalties. The amendment as written does not foreclose this result. If adopted, any conflicting statute would remain enforceable only to the extent it can be reconciled with the new constitutional provision.

Under this new state test, protecting the relationship between parent and child, respecting parents’ constitutional rights and enabling them to fulfill their responsibilities do not qualify as compelling interests. A child’s asserted autonomy takes constitutional precedence. Parental consent becomes vulnerable precisely because it constrains the child’s decision, making these independent grounds virtually unavailable as defenses. The parent’s duty to protect is thus recast as unconstitutional interference. Scripture wisely commands otherwise: “bring [your children] up in the nurture and admonition of the Lord.” – Ephesians 6:4

Virginia already recognizes parental rights and generally requires parental or other authorized adult consent for minors’ abortions, with judicial procedures and exceptions for abuse and emergencies. Protecting children from abusive parents does not justify excluding fit parents. Yet ordinary statutes cannot prevail against contrary constitutional commands.

In Parham v. J.R., concerning psychiatric care, the Supreme Court recognized parents’ maturity, judgment and natural affection. “Parents can and must make those judgments,” it explained. A state referendum cannot extinguish federally protected parental rights. But litigation over their application could take years. A later victory cannot restore a parent’s lost opportunity to guide a frightened child before an irreversible decision.

Women confronting difficult pregnancies deserve medical care, material assistance and communities that will not abandon them after birth. Fathers must fulfill their responsibilities. Churches and neighbors must make love tangible. Neither poverty nor an unexpected pregnancy releases the rest of us from our obligations.

Virginia should protect its children before and after birth and stand beside their mothers throughout. And we ought to remember that “Righteousness exalteth a nation: but sin is a reproach to any people.”— Proverbs 14:34