Virginia’s Abortion Amendment Would Strike Down Statutory Rape Laws

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Virginia Democrats have supported a “Reproductive Freedom” constitutional amendment, but critics warn that it would vacate laws against statutory rape, and a lawsuit seeks to invalidate it.

“Virginia’s so-called reproductive freedom amendment goes far beyond the issue of abortion,” Josh Hetzler, executive director of the Founding Freedoms Law Center and an attorney for the nonprofits challenging the amendment, told the Daily Signal in a statement Tuesday.

“Among other wild consequences, it will eliminate statutory rape laws for consenting minors, since the amendment provides an unqualified ‘fundamental right to reproductive freedom’ to every ‘individual,’ without any limitation on age,” Hetzler warned. “This is wrong and extremely dangerous for Virginia.”

Statutory rape refers to sex between one person above the age of consent and one below the age of consent. Even though both parties consent, the act still violates the law. Critics say the amendment is so broad that it would invalidate such laws.

Hetzler represents two health care nonprofits—the Association of American Physicians and Surgeons and the Virginia Medical Freedom Alliance—and Meagan Kade, a registered voter and a member of the Bluefield Town Council.

Kade and the nonprofits sued the Virginia State Board of Elections, the Virginia Department of Elections, and county officials, claiming they violated the law by using deceptive language in the abortion amendment and failing to notify voters ahead of the 2025 general election.

The Procedural Issue
Virginia constitutional amendments must pass the Legislature before a general election and after that election before appearing on a separate general election ballot for voters. The lawsuit claims that state and local officials failed to notify voters about the ballot initiative before the intervening general election.

This procedural issue echoes the failure of the Virginia redistricting ballot initiative, which the Virginia Supreme Court invalidated because Old Dominion voters had already begun casting ballots by the time the ballot initiative first passed the Legislature in 2025. The court ruled that there had been no intervening election between the amendment’s first passage and the amendment’s second passage.

The Virginia Department of Elections declined to comment on pending litigation.

Deceptive Language and Statutory Rape
The lawsuit also claims that the “reproductive freedom” ballot language is deceptive.

The Legislature passed, and Gov. Abigail Spanberger signed, the bill that includes this question for the voters in November:

Question: 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?

The amendment’s full text will not appear on the ballot, however. It would add to Virginia’s constitution the statement that “every individual has the fundamental right to reproductive freedom, including the ability to make and carry out decisions relating to one’s own prenatal care, childbirth, postpartum care, contraception, abortion care, miscarriage management, and fertility care.”

The amendment also states that “an individual’s right to reproductive freedom shall not be, directly or indirectly, denied, burdened, or infringed upon unless justified by a compelling state interest achieved by the least restrictive means.” The lawsuit claims this would create an exacting legal standard that would make it extremely difficult for state or local officials to regulate any aspect of reproduction.

The amendment does not include any age limits on “reproductive freedom.”

Former Virginia Delegate Robert Marshall warned that the amendment “would allow minors to legally access birth control, abortion, sterilization, or transgender ‘sex change’ medical procedures or drugs without parental consent or knowledge. This effectively nullifies any minimum legal age of sexual consent.”

The lawsuit claims the ballot language “fails to disclose that Virginia voters are being asked to approve a near-absolute ‘fundamental right to reproductive freedom.’”

The lawsuit claims that the amendment would end or severely limit Virginia’s ability to require parental notice and consent for minors getting abortions; to limit the performance of sexual sterilization procedures on minors; to restrict the practice of abortion to licensed health professionals; to impose safety requirements for abortion; to prohibit statutory rape; to restrict sexual conjugal visits for inmates; and to regulate assisted reproductive technologies.

Plaintiffs claim the ballot language “fails to disclose” these many effects of the proposed amendment.

Supporters’ Defense
The amendment’s supporters claim that it would not erase safeguards the Old Dominion already has in place for abortion practices.

When state Sen. Tara Durant, a Republican, attempted to insert parental consent laws into the amendment, Democrats and legal experts said that it was unnecessary to reiterate them, WTOP reported.

Virginians for Reproductive Freedom, a nonprofit supporting the amendment, did not respond to the Daily Signal’s request for comment by publication time. The Daily Signal reached out to Spanberger, the amendment’s lead sponsors in the House of Delegates and the Senate, and the local officials named in the lawsuit, but did not receive a response by publication time.

“I cannot 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, one of the plaintiffs challenging the amendment, said at an April press conference. “I have a right to participate in a constitutional referendum process free from fraud.”