MONTPELIER, Vt. — Vermont’s proposed amendment to the state constitution would give abortion more permanent legal protection than anywhere else in the United States. 

The question is: How much more might it do? 

“Under this, if it’s passed I have no idea how we would protect an unborn child from anything,” said Mary Beerworth, executive director of the Vermont Right to Life Committee, in a telephone interview with the Register. 

By that she means experiments on unborn babies. But she and other opponents also wonder what it might mean for gender-questioning adolescents and health care workers who are repulsed by abortion. 

The proposed amendment doesn’t mention any of those things, however. Supporters say it would simply keep Vermont’s current level of protection of abortion and contraception through state statute and make it more permanent through the state constitution, which requires a lengthy and difficult process to amend. 

“The passage of this amendment to our state constitution will guarantee a liberty that we already possess. … Now is the time to affirm the liberty to make our own decisions about our own lives, without future politicians or others interfering,” said Bruce Lee-Clark, a retired United Methodist pastor and a legal services attorney who lives in Bennington, during a public hearing before a legislative committee Jan. 26. 

But opponents envision expansionist, activist judges using the amendment to establish policy goals beyond what Vermont has in place now. 

“I think the biggest problem with it is it’s completely open-ended. You could interpret it to mean almost anything,” said State Rep. Anne Donahue, R-Northfield, an opponent of the measure, in a telephone interview with the Register. 

Donahue notes that Vermont has no provision in state law currently that would explicitly allow a health care facility or health care worker not to take part in abortion, and that the state Legislature has not acted on bills she has presented in recent legislative sessions that would acknowledge such a right. 

“I worry about something as basic as health workers’ rights of conscience,” Donahue said. 

Carrie Handy, a member of the Vermont Family Alliance, which opposes the proposed amendment, told the legislative committee she is troubled by what she sees as a lack of specificity and safeguards in Proposal 5. 

“What exactly is meant by reproductive autonomy? And why are there no age restrictions? Will minors be free to act outside of their parents’ jurisdiction in matters related to reproductive autonomy, however that might be defined in the future? And how will that be defined? No one knows. Hypothetically, a minor child could be legally entitled to obtain anything from abortion to puberty-blocking hormones to gender-change surgery without parental consent, involvement, or even notification,” Handy said during a public hearing Jan. 26. 

 

Other States 

Vermont is among several abortion-friendly states where advocates are looking to strengthen legal protection and increase access to abortion — spurred on by the possibility of a post-Roe v. Wade world come June, when the U.S. Supreme Court is expected to release its decision on Dobbs v. Jackson Women’s Health Center. 

In California, for instance, a report titled “Future of Abortion” commissioned by Gov. Gavin Newsom, a Democrat, calls for passing legislation providing scholarships and loan repayment for abortionists, eliminating co-payments for abortion in private health insurance plans, and forcing religious hospitals to provide “a full spectrum of health care, including the abortion, contraception, miscarriage management, and gender-affirming care,” among other things. 

In Colorado, Democratic Gov. Jared Polis signed into law the state’s “Reproductive Health Equity Act” on April 4. It codifies a right to abortion in state law, bans local governments from establishing any abortion restrictions, and specifies that a “fertilized egg, embryo or fetus” has no independent rights under state law.  

In Rhode Island, some state legislators want to extend public funding of abortion to Medicaid recipients and include abortion coverage in the health plan of state employees, which is not the case now. 

In Maryland, both chambers of the state Legislature have passed a bill that would allow nurse practitioners, nurse midwives and physician assistants to provide abortions and would create a $3.5-million-a-year state training fund for health care professionals to learn how to perform abortions. It would also require health insurance plans to cover abortion without cost to the insured. Maryland voters may also vote in November 2022 on a proposed state constitutional amendment that would declare “a fundamental right to reproductive liberty.” 

In Michigan, a tossup state where Republicans currently control both chambers in the Legislature, abortion advocates are collecting signatures of registered voters to put forth a referendum in November 2022 for a proposed state constitutional amendment designed “to establish a new individual right of reproductive freedom,” which would explicitly including abortion. The proposed amendment in Michigan would allow the state government to prohibit abortion “after viability unless needed to protect a patient’s life or physical or mental health.” Supporters of the measure have until July 11 to gather 425,059 signatures of registered voters. 

 

Even More Sweeping 

Vermont’s proposal is potentially more sweeping than the others, and it is more certain to go to the voters in November 2022, since both chambers of the state Legislature have completed a several-year process in approving it. 

The measure, called Proposal 5, would add to the Vermont Constitution the following: “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” 

What does that language mean? 

Abortion, for sure, but not just abortion, said a lawyer who advises Vermont state legislators. 

“Reproductive liberty and autonomy are concepts that come directly from the U.S. Supreme Court cases. Personal reproductive autonomy is a concept that’s derived from Roe -— the cases prior to Roe, Roe, and then the cases after Roe. And it includes not just the right to abortion, but also the right to choose or refuse contraception, the right to choose or refuse sterilization, the right to become pregnant, and then, of course, the right to have an abortion,” said Michele Childs, a lawyer with the Vermont Office of Legislative Council, which advises state legislators on bills, during a Jan. 13 public hearing of the Committee on Human Services of the Vermont House of Representatives. 

Childs’ statement led to a back-and-forth that day over what protection, if any, Vermont’s state government could offer unborn babies, even those capable of living outside the womb, a condition known as “viability.” 

“This proposition leaves no protections for the viable unborn child,” said State Rep. Carl Rosenquist, R-St. Albans, who opposes the measure. 

Childs suggested Rosenquist went too far. 

“I would disagree that there is not any way in which the state could assert, you know, say that they have an interest in protecting potential life. But they would have to fit within the framework of looking at the strict scrutiny standard,” Childs said. 

“Can you give an example of something that would measure up to that scrutiny?” Rosenquist asked. 

“I don’t know. I think I’d have to think about that. I’m sure there’s lots of people thinking about that one,” Childs said. 

At that point the chairman of the committee, State Rep. Ann Pugh (D-South Burlington), who supports the measure, jumped in. She said: “I will give the answer that I gave upon the floor of the House two years ago, which is it will depend upon the facts of the case. And to guess is sort of an exercise in futility, because … a legal challenge depends upon the specific facts of the case. So a legal challenge would be made.” 

A spokesman for Planned Parenthood of Northern New England, which supports the proposed constitutional amendment, could not be reached for comment by deadline. 

 

Most Abortion-Friendly State 

Vermont is currently the most abortion-friendly state in the country. In 2019, the state Llegislature passed an all-nine-months bill (signed by the governor) that declared “a fundamental right … to have an abortion” and stated that an unborn baby “shall not have independent rights under Vermont law.” The state requires no parental consent for underage girls to get an abortion. 

“Currently, there are not any restrictions on abortion in Vermont,” Childs said during the public hearing Jan. 13. 

Abortion isn’t controversial in Vermont, where a large majority of voters support it. But Donahue, a state legislator for the past 20 years, told the Register that the state Llegislature is more pro-abortion than voters in the state. 

“Clearly the vast majority of Americans, and I would say the vast majority of Vermonters, in a liberal state, they don’t want to say in the constitution you cannot restrict abortion up through nine months,” Donahue said. “… So the likelihood of it passing or not is highly dependent on the communication of what it actually says.” 

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Beerworth said opponents of the measure need about $3 million to fight it, which requires making individual households understand the details of the proposal. 

She said other states can expect to see similar measures if Proposal 5 passes in Vermont. 

“It’s got a national agenda behind it,” Beerworth said. “This is what they want to establish in Vermont so it can be a national model for other states to follow.”  

Register correspondent Matt McDonald is the editor of New Boston Post.