Beware the legal meaning of reproductive freedom amendments

By Robert G. Marshall ( bio - articles - email ) | May 26, 2026

In evaluating the contemporary spate of reproductive amendments to State constitutions, it is important to realize how the language of each amendment will be used in court cases. Regardless of whether the legal topic is taking the lives of children before birth, regulating automobile driving, providing for home-schooling or any other topic, establishing legislative intent depends on the meaning and use of words as well as grammatical rules of sentence construction and the understanding and placement of words as well as their omission.

Here I will examine some of the obvious legal pitfalls of the language used in the proposed Virginia reproductive freedom amendment. But the Canons of Judicial Construction governing statutes are not limited to only one state of the United States. While the discussion here uses examples from Virginia, other states and the federal courts have similar legislative practices for discovering legislative intent, at least when they are not completely overtaken by political ideology. Other states also have similar legal and grammatical usages defined in their state codes as to how certain words used by their legislature are to be applied. Further, all states have guidelines, rules or canons of judicial construction to ascertain the legislative intent of statutes.

For example, the Virginia Bar Association published an article on statutory interpretation which notes:

In interpreting statutes, Virginia courts follow the plain meaning rule.… The Supreme Court of Virginia has described the plain meaning rule as looking at the words of the statute to determine the legislature’s intent.… [C]ourts, at least initially…are to focus on the words of the statute to determine legislative intent. And in doing so, courts are to presume that the General Assembly selected the words “carefully and intentionally” and that it used the words in their ordinary sense. [Hon. A. Farashahi, Virginia Lawyer, Vo. 70, No. 3, Oct., 2021]

With this in mind, let us answer some questions about Virginia’s proposed reproductive freedom amendment (RFA), currently proposed as SJ Res 1. In other words, if Virginia voters approved SJ Res1, adding the Reproductive Freedom Amendment to Virginia’s Constitution at the November 3, 2026 general election, how would a Virginia judge look at the wording of this amendment?

Who may exercise RFA’s reproductive freedom in SJ Res 1

The RFA’s first sentence reads, “…every individual has the fundamental right to reproductive freedom….” (SJ Res 1, first paragraph, first sentence).The words “individual” or “individual’s” appear twelve times in SJ Res 1. Black’s standard legal dictionary, in the US since 1891, defines individual:

As a noun, this term denotes a single person as distinguished from a group or class, and also, very commonly, a private or natural person as distinguished from a partnership, corporation, or association…. [The Law Dictionary]

Virginia’s own Code of statutory construction provides that:

• “‘Person’ includes any individual…” (§ 1-230);
• “‘Child,’ ‘juvenile,’ ‘minor,’ ‘infant,’ or any combination thereof means a person less than 18 years of age.” (§ 1-207);
• “‘Adult’ means a person 18 years of age or more.” (§1-203).

Virginia is in the fourth federal Circuit Court of Appeals (MD, VA, WV, NC, and SC). In a 2022 decision the Court of Appeals noted:

the Supreme Court has explained, when used “[a]s a noun, ‘individual’ ordinarily means a human being, a person. [Mohamad v. Palestinian Auth., 566 U.S. 449, 454 (2012), 4th Circuit Court of Appeals, (8/5/2022)]

The use of the word “individual” as a regular or possessive noun has the meaning of a “person” or “human being”. Note, that there is no reference in SJ Res 1 to conditioning the exercise of “reproductive freedom” on attaining a minimum age. Moreover, there is no reference to age anywhere in SJ Res 1. The only valid conclusion that a Virginia judge may fairly draw is that the authors of the House and Senate RFAs plainly are using the word “individual” and its variants to include persons, individuals or others under 18 years of age, and individuals or persons older notwithstanding whatever senators or delegates pretend their personal motives or intentions were otherwise, and regardless of whether the legislators claim ignorance as to how the words would be applied. The Amendment has no minimum age and the present Code of Virginia indicates that the word “individual” must be understood in its most expansive use, which includes 12 years olds.

Indeed, had the RFA’s sponsors wanted a minimum age they could have provided one such as was done by an amendment to Virginia’s Constitution reducing the voting age from 21 to 18 by voter ratification on November 7, 1972 and made effective January 1, 1973 (found at Article II. Section 1, of Virginia’s Constitution which now reads, “Each voter shall be a citizen of the United States, shall be eighteen years of age….”

But the abortion-loving lawmakers did not put a minimum age in their Amendment, so there is no minimum age for exercising reproductive freedom.

What is the meaning of “reproductive”?

The RFA has a provisional, though incomplete, definition of reproductive freedom:

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. [SJ Res 1. First paragraph, first sentence]

Note that the use of the word “including” in the enumeration of the instances of “reproductive freedom” in the Amendment has the consequence that the list of particular instances mentioned is not to be taken as a complete list of “reproductive freedoms.” Virginia’s own Code of statutory construction provides that, “‘Includes’ means includes, but not limited to” (§ 1-218). Black’s Dictionary also defines “including” consistent with the Virginia Code of Statutory Construction as, “Including within statute is interpreted as a word of enlargement” (Black’s Law Dictionary, 6th edition, Centennial Edition p. 763). Black’s Dictionary is in widespread use by American lawyers and judges.

For example, the chief author of SJ Res 1, Sen. Jennifer Boysko, at least twice in debate used the term, “IVF”, as being authorized by SJ Res 1 under the rubric of “reproductive freedoms” even though the words In Vitro Fertilization or acronym IVF are NOT found anywhere in the text. In other words, IVF and In Vitro Fertilization are included since this is both reproductive-related and in accordance with the ordinary rules for interpretation of statutes.

Transgender treatment for minor children is also covered by SJ Res 1 because of the word “including” and also because on at least two different occasions, as recorded in the taped recordings of the state senate debate, Sen. Durant offered an amendment to prevent the General Assembly from retaining legal authority to enact limits on so-called, “gender affirming care.” Note that no one objected to Sen. Durant’s offering her amendment to SJ Res 1 on the grounds that her effort to limit the application of SJ Res 1 was not related to the overall purpose of the Proposed Constitutional Amendment, and therefore was not germane or out of order to be offered to the pending Constitutional Amendment. Therefore, a vote was taken on senator Durant’s gender related amendment. Moreover, her attempt to forbid the Amendment from being used to authorize transgender services or treatment was rejected.

Medical organizations such as Physicians for Reproductive Health support “gender affirming care” as part of “reproductive health” care (see Gender Affirming Care Fact Sheet, June, 2025). The American Society for Reproductive Medicine has published Access to fertility services by transgender and nonbinary persons: an Ethics Committee opinion.

SJ Res 1 will carry with it any application or use now or any time in the future regarding behavior, surgery, medical intervention, drugs or devices, or actions which are related to some aspect of “reproductive” behavior. For example, cloning is a form of human reproduction that is currently illegal in Virginia, and a person who engages in human cloning may be “liable for a civil penalty in an amount not to exceed $50,000 for each incident” [32.1-162.22.(C)]. But cloning could not be made illegal or criminal with passage of SJ Res 1.

Indeed, one need only reflect that the terms, “slavery” or “chattel slavery” never appeared in the original US Constitution. Yet, its meaning certainly was universally understood as being legally allowed in the states choosing it. A Civil War over slavery resulted in at least 618,222 deaths and possibly 750,000 killed on both sides. The first time “slavery” was mentioned in the US Constitution was in the 1865 Thirteenth Amendment abolishing slavery! At long last, it was stated that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

In other words, just because something is not stated in a list of inclusions does not mean it is excluded. And that is the case with more than one reproductive bill or amendment, including the one currently pending in Virginia which, for convenience, is reproduced below.

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Previous in series: The deception and danger of “Reproductive Freedom Amendments”

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Proposed Constitutional Amendment
Fundamental Right to Reproductive Freedom, S.J.Res. 1—H.J. Res. 1

ARTICLE I BILL OF RIGHTS Section 11-A. Fundamental right to reproductive freedom.

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.

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.

Notwithstanding the above, the Commonwealth may regulate the provision of abortion care in the third trimester, provided that in no circumstance shall the Commonwealth prohibit an abortion (i) that in the professional judgment of a physician is medically indicated to protect the life or physical or mental health of the pregnant individual or (ii) when in the professional judgment of a physician the fetus is not viable

The Commonwealth shall not discriminate in the protection or enforcement of this fundamental right.

The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against an individual based on such individual’s own exercise of this fundamental right or such individual’s own actual, potential, perceived, or alleged pregnancy outcomes, including miscarriage, stillbirth, or abortion. The Commonwealth shall not penalize, prosecute, or otherwise take adverse action against any individual for aiding or assisting another individual in exercising such other individual’s right to reproductive freedom with such other individual’s voluntary consent.

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.

This section shall be self-executing. Any provision of this section held invalid shall be severable from the remaining portions of the section.