Virginia abortion amendment faces legal challenge, even if voters approve it

The Virginia appeals court is being asked to invalidate the amendment, arguing state lawmakers failed to follow proper procedures before putting it before voters.Liberty Counsel filed a brief Oct. 19 on behalf of Charla Bansley, a Bedford County Board of Supervisors member challenging the amendment. Bansley v. Nardo argues lawmakers failed to give the public proper notice of the proposal before a 2025 election and later changed the law to address the alleged violation. “This is absolutely unconstitutional under Virginia’s constitution,” Mat Staver, Liberty Counsel’s founder and chairman, told the Washington Examiner. “We’re asking the Court of Appeals to declare this amendment null and void.”Under Virginia’s constitutional amendment process, a proposed amendment must pass the General Assembly in two successive legislative sessions and have an election in between them. Liberty Counsel argues state law also required lawmakers to distribute the proposed amendment to circuit court clerks statewide for public posting at least 90 days before the intervening 2025 election.“The big important step that the legislature missed intentionally,” Staver said. “They did not send out the notice to the clerks 90 days before the intervening election in 2025.”He argued the notice requirement serves as a safeguard by allowing voters to learn what lawmakers are supporting before deciding whether or not to vote those lawmakers back into office.“That’s a significant procedural safeguard that they intentionally bypassed,” Staver said. “That alone should result in this amendment being void in the courts.”Mary Olivia Rentner, the Communications Director of Virginians for Reproductive Freedom, said she believes Judge Cook’s dismissal of the lawsuit will be upheld.“The effort to enshrine reproductive freedom in Virginia’s Constitution began more than three years ago after the Dobbs decision stripped millions of people of their federal right to abortion,” Rentner said in a statement to the Washington Examiner. “Advocates and volunteers across the Commonwealth have worked hard ever since to make sure every Virginian knows about this critical amendment. As required in the state constitution, the amendment cleared two General Assembly sessions with an intervening House of Delegates election, the Governor signed the enabling legislation, and reproductive freedom is on the ballot this November as Question 1. Now, the power to amend Virginia’s Constitution is in the hands of the voters.”The proposed amendment, known as House Joint Resolution 1, is on the November 2026 ballot, and early voting in Virginia is already underway.This legal challenge is not seeking to remove the measure from the ballot. Instead, Liberty Counsel wants the Court of Appeals to rule that the process to get the measure on the ballot was invalid and, even if Virginians vote “yes,” the amendment cannot be made part of the state constitution.Dispute over retroactive repeal The challenge also centers on the General Assembly’s subsequent repeal of the posting requirement.In July, Campbell County Circuit Court Judge John T. Cook dismissed Bansley’s challenge. The court ruled the case had no standing because the legislature’s retroactive repeal addressed the alleged procedural problems.Liberty Counsel is appealing those conclusions, arguing the General Assembly is admitting it made an illegal move by trying to retroactively erase the alleged violation and change the law after the fact.“They can’t repeal something retroactively and make their illegal actions legal, and that’s what they did,” Staver said. “Procedures are there for a reason … They can’t be ignored, and they can’t be repealed retroactively.”Staver argued that allowing lawmakers to change a law, after breaking it, would create an “unrestrained legislative body that has no responsibility to the rule of law, and literally ignores the will of the people.”“The precedent that that would set is that there is a law in place and the legislature intentionally violates the law, and then when they’re caught, they go back and retroactively repeal the law,” Staver said.Staver also points to a May 2026 Virginia Supreme Court decision invalidating a proposed redistricting referendum because of improper procedures. Though the two cases involve different alleged procedure violations, Staver said the decision supports his organization’s argument that Virginia must strictly follow the procedures for adding constitutional amendments to the ballot.“The Constitution shouldn’t be treated like a statute that’s easily changed by a legislative vote,” Staver said. “It is something that should be deliberate, should be intentional.”Challenge could continue after November Liberty Counsel is asking the Court of Appeals to declare the abortion amendment invalid regardless of the election outcome.“Even if the voters approve this amendment in November, the legal challenge continues,” Staver said.If the court rules against the challenge, Staver said the organization plans to pursue the case before the Virginia Supreme Court.“I think the Virginia Supreme Court is the ultimate final stopping place, anyway,” Staver said.FEDERAL JUDGE BLOCKS SPANBERGER’S SANCTUARY LAW AS ICE ARRESTS SURGENo matter the outcome of voting on the ballot measure, the separate legal challenge could determine whether the proposed amendment ultimately takes effect.The Washington Examiner has reached out to the Virginia Attorney General’s Office for comment.