HJ1 and SJ247 (SJ1 New)…. not just about “Reproductive Freedom”
Introduction
The legislative proposals HJ1 and SJ247 have generated significant discourse concerning women's health, reproductive rights, and the broader implications of these legal enactments. The left would have us believe that this is just about giving women the right of reproductive freedom, but as this capitol alert shows, there is a much sinister plot in the minds of the left. I realize that this is a much longer capitol alert than usual, but this is a must read. Christians must understand ALL that is at stake. This article examines the contents and consequences of these measures, explores related legislation in other jurisdictions, and addresses the implications for taxpayer-funded abortions, eugenic abortions, parental notification, and potential infringements on religious liberty.
Overview of HJ1
To contextualize, HJ1 is a resolution introduced in Virginia intended to guarantee Reproductive Freedom. Below is a copy of the VA HJ1(emphasis mine):
Section 11-A. Fundamental right to reproductive freedom.
That every individual has the fundamental right to reproductive freedom. This right to make and effectuate one's own decisions about all matters related to one's pregnancy shall not be denied, burdened, or infringed upon, unless justified by a compelling state interest and achieved by the least restrictive means that do not infringe an individual's autonomous decision-making. A state interest is compelling only when it is to ensure the protection of the health of an individual seeking care, consistent with accepted clinical standards of practice and evidence-based medicine. The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.
That, except when justified by a compelling state interest, the Commonwealth shall not penalize, prosecute, or otherwise take adverse action against an individual on the basis of an actual, potential, perceived, or alleged outcome of such individual's pregnancy, nor shall the Commonwealth penalize, prosecute, or otherwise take adverse action against an individual who aids or assists another individual, with such individual's voluntary consent, in the exercise of such individual's right to reproductive freedom.
Absence of Physician Consultation or Physician Only Requirements
A contentious aspect of these legislative measures is the absence of requirements for in-person consultations with a physician. This omission could result in considerable health risks for women, as it eliminates the critical step of a medical professional conducting a comprehensive examination and providing advice on the safest course of action. Other states, with very similar (or in many cases exact language) have used the language to challenge other aspects of the law; one such case is the Physician Consultation requirements. Currently the Code of Virginia §18.2-74 states during third trimester:
“The physician and two consulting physicians certify and so enter in the hospital record of the woman, that in their medical opinion, based upon their best clinical judgment, the continuation of the pregnancy is likely to result in the death of the woman or substantially and irremediably impair the mental or physical health of the woman”.
But the language of this amendment could change all of that as this language has been used in other states to challenge these requirements.
Preterm-Cleveland v. Yost, No. 24 CV 2634 (Court of Common Pleas, Franklin County, Ohio Aug. 23, 2024) (preliminary injunction issued blocking enforcement of Ohio’s statutory requirements for a 24-hour waiting period, in-person visit with a physician, and provision of certain informational materials to a woman prior to an abortion, because the statutes “burden, penalize, prohibit, interfere with, and discriminate against” an individual’s exercise of her reproductive rights as prohibited by the 2023 Ohio constitutional amendment. The suit was filed by the American Civil Liberties Union, the ACLU of Ohio, Planned Parenthood Federation of America, and the law firm Covington & Burling LLP, on behalf of abortion providers).
Northland Family Planning v. Attorney Gen. of Michigan, No. 24-000011-MM (Mich. Ct. Cl. June 25, 2) ( (preliminary injunction issued blocking enforcement of Michigan’s 24-hour waiting period, many of the mandatory informed consent requirements, and the physician-only law on the grounds that the laws violate the 2022 Michigan constitutional amendment because they “burden and infringe upon” a woman’s decision to obtain an abortion. The lawsuit was filed by the Center for Reproductive Rights on behalf of abortion providers and Medical Students for Choice).
Does some of that language sound familiar?
Taxpayer-Funded Abortions
Measures like HJ1 and SJ247 could potentially intensify this debate on taxpayer funded abortions, leading to significant legal challenges and public controversy. Currently the Code of Virginia §32.1-92.2 allows for publicly funded abortions if:
“…. the fetus will be born with a gross and totally incapacitating physical deformity or with a gross and totally incapacitating mental deficiency”.
However, with the current language of the amendment, this could be challenged because the right to reproductive freedom…. “shall not be denied, burdened, or infringed upon….”
Again, other states with similar language as HJ1/SJ247 have had challenges to the ban of taxpayer funded abortions.
The Young Women’s Christian Association of Kalamazoo, Michigan v. State of Michigan and Dept. of Health and Human Services, Verified Complaint, Michigan Court of Claims, No. 24-000093MM4 (alleges that Michigan’s statutory prohibition on Medicaid-funded abortions violates the 2022 Michigan constitutional amendment because it “burdens and infringes” on the fundamental right to reproductive freedom for Medicaid-eligible women, that it discriminates against women seeking abortions compared to women who choose to carry their unborn children to term, and that it “discriminates on the basis of sex, given that it singles out a sex-correlated medical procedure for disfavor.” emphasis added). A decision has not yet been issued. The Michigan constitutional amendment is nearly identical to Virginia’s HJ 1/SJ 247).
Absence of Ban on Eugenic Abortions
An additional critical issue is the absence of laws prohibiting eugenic abortions, particularly those targeting children with Down syndrome. This raises ethical concerns and underscores the necessity for clear legislation to protect the rights of unborn children with genetic conditions. The language “shall not be denied, burdened, or infringed upon….” could be used to prevent the enactment of such a law.
Comprehensive Health of Planned Parenthood Great Plains v. State of Missouri, No. 2416CV31931 (Cir. Ct. of Jackson County, Missouri at Kansas City Dec. 20, 2024) (preliminary injunction issued blocking Missouri’s prohibition on abortions based on the race, sex, or Down Syndrome diagnosis of the unborn child as violative of the 2024 Missouri constitutional amendment. The lawsuit was brought by Planned Parenthood, ACLU of Missouri, and the national ACLU, on behalf of two Planned Parenthood affiliates.)
Protection of Fetal Life When a Heartbeat is Detected
One of the most controversial aspects of these measures is the absence of protections for fetal life once a heartbeat is detected. The language …. “shall not be denied, burdened, or infringed upon….” could be used to prevent such bills.
Preterm v. Yost, No. A2203203 (Court of Common Pleas, Hamilton County, Ohio Oct. 24, 2024) (permanently enjoined Ohio’s heartbeat law from taking effect on the grounds that it violated the 2023 Ohio constitutional amendment. The heartbeat law protected from abortion an unborn child whose heartbeat had been detected (about six weeks).
Comprehensive Health of Planned Parenthood Great Plains v. State of Missouri, No. 2416CV31931 (Cir. Ct. of Jackson County, Missouri at Kansas City Dec. 20, 2024) (preliminary injunction issued enjoining enforcement of Missouri’s total prohibition on abortions; its cascading prohibitions on abortions at eight weeks LMP, fourteen weeks LMP, eighteen weeks LMP, and twenty weeks LMP; and its restriction on abortions at the point that the unborn child feels pain (defined as twenty weeks gestational age or later) on the grounds that they violate the 2024 Missouri constitutional amendment).
Regulations on the Abortion Pill
Remember the language: …. “shall not be denied, burdened, or infringed upon….” this could be used, and has been used in other states, to regulate the abortion pill and thus endanger woman’s health.
Planned Parenthood Southwest Ohio Region, et al. v. Ohio Dept. of Health, et al., No. A 2101148 (Court of Common Pleas, Hamilton County, Ohio Aug. 29, 2024) (a Hamilton County Common Pleas judge temporarily enjoined Ohio’s statutes preventing Advanced Practice Clinicians [Nurse Practitioners, Certified Nurse Midwives, and Physician Assistants] from providing chemical abortions, as well as a provision requiring physicians to follow FDA labeling. The court found these statutes violate Ohio’s 2023 constitutional amendment).
Comprehensive Health of Planned Parenthood Great Plains v. State of Missouri, No. 2416CV31931 (Cir. Ct. of Jackson County, Missouri at Kansas City Dec. 20, 2024) (preliminarily enjoined Missouri’s chemical abortion telemedicine ban that requires the abortionist to be in the room when the woman takes her first dose of medication. The chemical abortion complication plan requirement was challenged as well, and the court enjoined the regulations implementing the statute. Both provisions were found to violate the 2024 Missouri constitutional amendment).
Potential Religious Liberty Infringements
Finally, the potential for infringements on religious liberty cannot be overlooked. The proposed resolutions could have far-reaching implications for religious liberties. In other jurisdictions with similar legislative frameworks, the threat to religious liberty becomes apparent. In the first part of the amendment it states: “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.”
Then it is at the bottom of the amendment that “compelling state interest” is defined. “For the purposes of this section, a state interest is compelling only if it is for the limited purpose of maintaining or improving the health of an individual seeking care, consistent with accepted clinical standards of care and evidence-based medicine and does not infringe on that individual's autonomous decision making.”
Therefore, it is very logical to conclude that this amendment would require a doctor or hospital, whether for conscionable or religious reasons will not perform an abortion, to do so because the “person seeking care” is the one seeking the abortion, and those rights “shall not be, directly or indirectly, denied, burdened, or infringed upon.”
Conclusion
The proposed measures HJ1 and SJ247 carry far-reaching legal implications for women's health, reproductive rights, and broader societal values. It is vital that God’s people get engaged in this legislative issue. We need to flood the offices of your Delegate or Senator and tell them to vote “NO” to HJ1 and SJ247.