Virginia Judge Allows Post-Election Challenge To Late-Term Abortion Amendment

A Virginia judge has set a hearing date for a challenge to Virginia’s abortion-on-demand constitutional amendment on the ballot this November, denying the state government’s motion to prevent the hearing from proceeding. Judge Jack Hurley of the Tazewell Circuit Court denied the commonwealth’s motion and set a hearing date for Nov. 13, ten days after Election Day. In that hearing the Founding Freedom Law Center (FFLC) will argue for invalidating the abortion amendment if it passes on Election Day. Hurley is the same judge who consistently ruled against the Democrats’ power-grab gerrymander that would have rigged congressional districts to give Democrats 10 seats and Republicans one. Democrats ultimately lost that gamble in the Supreme Court of Virginia. “This amendment is the most consequential question Virginians will face in a generation, and they are being asked to vote on it without being told the truth about what it does,” Victoria Cobb, president of The Family Foundation of Virginia (of which FFLC is the legal arm), said at the time FFLC filed the complaint. “The Family Foundation is in court because the legislature failed in its duty to ask the question honestly, and Virginians deserve better than a rigged ballot.” FFLC’s lawsuit to prevent the certification of election results in favor of the ballot amendment states that the language used on the no-restrictions abortion measure “profoundly misleads by omission and misrepresentation” the voters when asking them to vote for it. The question for the measure reads: 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 lawsuit states that the language heavily implies that the “freedom” to abort an unborn child already exists, and that the new amendment would simply “protect” that “freedom.” “While the Ballot Language could forthrightly explain that the Proposed Amendment would ‘establish’ or ‘declare’ a freedom for abortion, it instead falsely pretends the right already exists and is only intended to be ‘protect[ed].’ Undoubtedly, this presents a deceptive and biased word choice,” the lawsuit says, adding, “The Ballot Language fails to disclose that Virginia voters are being asked to approve a near-absolute ‘fundamental right to reproductive freedom.’” The amendment would establish virtually unregulatable third-trimester abortions for many reasons, including for reasons of the mother’s “mental health.” It imposes a “‘fundamental right to reproductive freedom’ — that is, a right to freely engage in sexual and other reproductive conduct with essentially no possibility of governmental restraint at all,” the lawsuit states. The complaint goes on to list a litany of undisclosed consequences of the deceptive ballot measure, including the dissolution of parental notice or consent for minors to get abortions, the amendment’s power to block most state regulations on child “transgender” “sexual sterilization procedures,” and relaxing licensure requirements and safety protocols for those who perform abortions. It will also “end or severely limit Virginia’s … ability to prohibit statutory rape, (f) ability to restrict sexual conjugal visits for Virginia inmates, and (g) ability to regulate the emerging assisted reproductive technology industry.” FFLS is asking the court to recognize that the ballot language violates the Virginia Constitution and would therefore be invalid and have no effect even if it passed. The organization also raises a procedural issue as well, stating that it was not distributed in compliance with laws regulating proposed constitutional amendments. Virginia law requires that the House of Delegates send copies of the ballot language to the clerks of the commonwealth’s circuit courts to be posted on the front doors of the courthouses, specifically for voter “awareness.” In this case, it should have been posted “at least three months prior to the November 2025 general election,” but it was not, according to the lawsuit. The gerrymander effort failed because of similar procedural concerns, with Democrats attempting to rig the process to stop voters from having a meaningful say on the proposal, as required by Virginia law. In the abortion amendment case, plaintiff Meagan Kade, a Tazewell County resident and Bluefield Town Council member, stated, “We’re not asking the court to decide one outcome over another. We’re asking that the question be posed to voters honestly, and then let the citizens decide. That hasn’t happened. So we have no choice but to challenge what they’ve done.” Breccan F. Thies is the White House correspondent for The Federalist. He is a co-recipient of the 2025 Dao Prize for Excellence in Investigative Journalism. As an investigative journalist, he previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies. abortion on demandElection 2026Family Foundation of VirginiaFounding Freedoms Law CentergerrymanderJudge Jack Hurleylate-term abortionTazewell Circuit CourtVictoria CobbVirginia