Virginia abortion rights vote faces Nov. 13 court hearing even if voters approve it

Virginians are voting through Tuesday on whether to write a right to reproductive freedom into their state constitution. But a court hearing is already set for Nov. 13, and the lawsuit behind it aims to stop a yes vote from being made official. ¹²

Last week, Judge Jack Hurley of Tazewell Circuit Court refused the state's request to stop that hearing from going forward. ²³ The suit seeks a court order blocking certification of the results if the amendment passes. Certification is the formal step that makes an election result final. ¹

On tapeWSET ABC 13 · Oct 21

▶2:17

The judge has not ruled on whether the amendment is valid. He will hear arguments on the legal issues on Nov. 13. ²

That matters because Virginia voters have already seen a result they approved thrown out this year. In April, they passed a redistricting amendment by about 51.7% to 48.3%. ¹³ On May 8, the Supreme Court of Virginia voided the vote in a 4-3 decision, saying the legislature had not followed the required process. ⁸

What the lawsuit claims

The case was brought this spring by the Founding Freedoms Law Center, the legal arm of the Family Foundation of Virginia, a conservative group. ¹¹² Its clients are the Association of American Physicians and Surgeons, the Virginia Medical Freedom Alliance and Bluefield town council member Meagan Kade. ²¹²

The suit makes two main claims. The first is about process. An older state law required the House of Delegates clerk to send the amendment's text to circuit court clerks to be posted at courthouses, and the suit says that did not happen on time. ¹³ Lawmakers repealed the requirement retroactively this year, and a central question is whether they could do that. ¹¹²

The second claim is that the ballot wording misleads voters. ¹ Family Foundation president Victoria Cobb has called the language "engineered to obscure what this amendment actually does." ¹²

Not only would this proposed abortion amendment be a disaster for policy reasons, but it would undermine trust in our democratic processes because of the flawed and deceptive means by which it will have passed. We cannot allow that to happen.

A similar suit from another group, Liberty Counsel, was dismissed over the summer in a different court, and that group is seeking an appeal. ¹ In that case, Senior Assistant Attorney General Erin McNeil put the state's position to the court this way:

How can the General Assembly have this authority to prescribe a process but not have the authority to change that process?

There is a real precedent here, though it is not an exact match. The Virginia Mercury reports that the courthouse-posting argument surfaced as part of a successful effort to strike down a redistricting referendum, a case advanced in Tazewell by Judge Jack Hurley. ¹ WSLS reported that the high court's ruling focused on a different step: the requirement that an election take place between a proposal's first and final passage. ⁸

What the amendment would do

Question 1 would protect personal decisions about prenatal care, childbirth, postpartum care, birth control, abortion, miscarriage management and fertility care. It would also protect doctors, nurses and patients from punishment for those decisions. Abortion could still be restricted in the third trimester, except when the patient's health is at risk or the pregnancy cannot survive. ⁴ If voters approve, it takes effect Jan. 1. ⁷

Virginia is the only Southern state that has not banned or restricted abortion since the Supreme Court's 2022 Dobbs decision ended the national right to abortion. ¹⁴ Polls suggest the idea has broad support. A Wason Center poll in January found 66% of Virginians backed a constitutional amendment guaranteeing access to abortion and contraception. ⁹

The amendment's chief sponsors say it would write existing protections into the constitution, out of reach of future lawmakers. State Sen. Jennifer Boysko, a Fairfax County Democrat, told Cardinal News it was based on "current laws that we have on the books." ⁴

It protects our freedom to make those decisions without fear of government interference or criminal punishment.

Opponents say the language is too broad. They point out that the number of doctors needed for a third-trimester abortion would drop from three to one. They also argue it could override the state's parental consent law. ⁵¹² House Majority Leader Charniele Herring, a Democrat from Alexandria, disputes that, saying, "So our parental consent law would still be on." ⁵

Marriage is in court too

The same law center is now representing the Rev. Ben Purves, a Prince William County pastor, in a challenge to Question 2 on the same procedural grounds. ¹⁶ FOX 5 reports the suit will not go before a judge before Election Day. ⁶

Question 2 would remove the same-sex marriage ban that Virginia voters added to the constitution in 2006. ⁷ The ban has been unenforceable since the Supreme Court's 2015 Obergefell decision, but it would return if that ruling were overturned. ⁴ Justice Clarence Thomas suggested revising the 2015 ruling after Roe v. Wade fell, and that is part of why lawmakers sent these amendments to voters. ¹

Larry Sabato, director of the University of Virginia's Center for Politics, summed up the thinking behind the amendments: "This is seen as an insurance policy." ⁷

We like to say Virginia is for lovers, but we're also for families, and that includes all families.

The amendment nobody is suing over

Question 3 would automatically restore voting rights to people with felony convictions once they leave prison. ⁴ It advanced the same way as the other two, but Founding Freedoms does not plan to challenge it. ¹

"We're not personally concerned about the restoration-of-rights amendment," Hetzler said in a phone call over the summer. ¹ The group is not challenging the voting-rights question, while it is challenging the abortion and marriage questions. ¹⁶

Gov. Abigail Spanberger, a Democrat, signed the bills sending the amendments to voters in February. "Virginia voters deserve the opportunity to respond to the nationwide attacks on our rights, freedoms, and elections," she said then. ¹⁰ Attorney General Jay Jones said after the May ruling that it silenced the voters who took part in the redistricting referendum. ⁸ A similar fight may now be coming over abortion and marriage, and it would begin 10 days after the polls close.

The Record

1. Feb 1, 2026Gov. Abigail Spanberger signs the bills sending the constitutional amendments to voters. ¹⁰
2. Apr 21, 2026Virginia voters approve a redistricting amendment by about 51.7% to 48.3%. ¹³
3. May 8, 2026The Supreme Court of Virginia voids the redistricting vote 4-3 on procedural grounds. ⁸
4. Oct 22, 2026Tazewell Circuit Court denies the state's motions to stop a post-election hearing on the reproductive freedom amendment. ²
5. Nov 13, 2026Scheduled date for the hearing on blocking certification if voters approve the amendment. ¹²

Sources

1. WTOP / Virginia Mercury, “If Virginians approve reproductive rights amendment, a hearing is set for Nov. 13 to challenge it” (2026-10-28). wtop.com/elections/2026/10/if-virginians-approve-reproductiv
2. Founding Freedoms Law Center, “Tazewell Judge Denies State's Motion; Sets Hearing over Abortion Amendment Nov. 13” (2026-10-26). foundingfreedomslaw.org/news/tazewell-judge-sets-hearing-on-
3. The Federalist, “Virginia Judge Allows Post-Election Challenge To Late-Term Abortion Amendment” (2026-10-27). thefederalist.com/2026/10/27/virginia-judge-allows-post-elec
4. Cardinal News, “Virginians will weigh in on 3 changes to their state constitution this fall. Here's a look at the proposed amendments” (2026-08-25). cardinalnews.org/2026/08/25/virginians-will-weigh-in-on-3-ch
5. WTVR, “Should abortion and contraception rights be included in Virginia's constitution?” (2026-10-02). wtvr.com/news/local-news/reproductive-freedom-virginia-const
6. FOX 5 DC, “Lawsuit targets Virginia same-sex marriage ballot question” (2026-10-27). fox5dc.com/news/lawsuit-targets-virginia-same-sex-marriage-b
7. WDBJ7, “Virginia voters to decide three constitutional amendments in November” (2026-09-21). wdbj7.com/2026/09/21/virginia-voters-decide-three-constituti
8. WSLS, “Virginia Supreme Court strikes down redistricting referendum in 4-3 decision” (2026-05-08). wsls.com/news/local/2026/05/08/virginia-supreme-court-strike
9. WDBJ7, “Wason Center releases results of new poll on various Virginia issues” (2026-01-29). wdbj7.com/2026/01/29/wason-center-releases-results-new-poll-
10. WSET, “Spanberger signs constitutional amendments on healthcare, voting rights, marriage equality” (2026-02-06). wset.com/news/local/governor-abigail-spanberger-signs-consti
11. WJLA, “Virginia voters will decide whether to enshrine reproductive rights in the constitution” (2026-10-28). wjla.com/news/local/virginia-voters-will-decide-whether-to-e
12. WHRO / Virginia Mercury, “New court challenge targets Virginia abortion amendment ballot language” (2026-05-01). whro.org/health/2026-05-01/new-court-challenge-targets-virgi
13. Wikipedia, “2026 Virginia Redistricting Amendment” (2026-10-30). en.wikipedia.org/wiki/2026_Virginia_Redistricting_Amendment
14. VPM, “Virginia constitution amendment on abortion, IVF, birth control, family planning and fertility health care” (2026-08-10). vpm.org/news/2026-08-10/va-constitution-abortion-ivf-birth-c

Found an error? Tell the newsroom. Corrections are noted at the top of the story.