Proposal 5: Personal Reproductive Liberty

Early voting for the 2022 General Election began this week. Especially in light of the June U.S. Supreme Court’s decision striking down the landmark abortion rights decision in Roe v. Wade, one of the most important items on our ballots this year is a proposed amendment to the Vermont Constitution that would enshrine the right to personal reproductive liberty in our state’s constitution:

Article 22 of the Vermont Constitution [Personal reproductive liberty]. That an individual’s right to personal reproductive autonomy is central to 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.

The amendment, also known as Proposal 5, has generated significant discussion because the stakes are so high for thousands of Vermonters and because the issue of abortion generates strong opinions. I am not a doctor or lawyer, but I have been involved with reproductive justice initiatives for most of my life and I was a strong advocate for the legislative work surrounding Article 22. I believe that the ability to make informed reproductive decisions and access vital health care is a fundamental human right that must be protected in our state and country, so I am writing to counter some misinformation you may be hearing.

There are three main points you should know:

• Reproductive health care in Vermont is currently unrestricted by state law, but is provided in accordance with standards of medical practice and medical ethics principles. The vast majority of abortions occur before 12 weeks of gestation, and abortions after 22 weeks are only provided in cases of medical necessity. The concept of a “late-term” abortion is a fallacy created to generate fear and confusion;
• Over the past four years, Proposal 5 has been thoroughly debated by legislators and the language was extensively vetted by legal and medical experts;
• Voter approval of Article 22 is crucial for the long-term assurance of access to reproductive health care and reproductive liberty as a fundamental human right in Vermont.

For details on each of these points, read more below.

Current Medical Practice

In Vermont, reproductive health care, like other health care procedures, is currently unrestricted by specific state law. However, health care practitioners follow the strict standards of medical practice and guiding ethical principles, and patients make decisions about reproductive health care based on their health status, personal situations, and core values. As such, the vast majority of abortions in Vermont occur very early in pregnancy, more than 92% during the first 12 weeks of pregnancy, increasingly with the use of medication that induces an abortion similar to heavy, crampy menstruation. Very few abortions occur after 22 weeks of pregnancy and all of these are in a hospital after a complete medical and ethical review, not as elective procedures. 

As Rep. George Till, a physician who is Division Chief of General OB/GYN at UVM Medical Center, explains in a recent editorial, “a pregnancy termination beyond 21 weeks, 6 days in Vermont only occurs in very specific circumstances, including for severe fetal anomaly, a fetal condition incompatible with life, or a dangerous, possibly life-threatening maternal health reason.” The concept of a “late term abortion” is a fallacy perpetrated by opponents of reproductive liberty to create unfounded fear and confusion. It is not a medical term or a procedure. Both health care data and medical practice underscore this reality. In addition to Rep. Till’s editorial, you can read the assessment of other medical professionals in Vermont, including former Commissioner of Health, Dr. Harry Chen, and Dr. Judy Stern, an emerita professor of OB-GYN at Dartmouth College.

Purpose and Importance of Article 22

Generally speaking, the Vermont Constitution establishes 1) the framework of our state government; 2) limits on State power; and 3) the rights of Vermonters. It does this broadly, leaving the specifics to legislation passed by the Vermont General Assembly and legal interpretations issued by the Vermont Judiciary. As such, the language in Article 22 does not provide details of reproductive autonomy, but instead establishes the broad right to personal reproductive liberty.

Currently, Vermont laws do not impose restrictions on access to reproductive health care. In 2019, the Legislature passed the Freedom of Choice Act, which codified in Vermont law access to reproductive health care and recognized the fundamental right to reproductive choice related to contraception, sterilization, pregnancy, and abortion. The legislative intent of the Act explains: “Health care practitioners providing abortion care in Vermont make determinations regarding the provision of safe and legal abortion within the scope of their practice and license, and in accordance with the relevant standards of medical practice and guiding ethical principles. The General Assembly intends this act to safeguard these existing rights to access reproductive health services in Vermont.”

While current law does not impose restrictions on or requirements for reproductive health care, future legislatures could vote to impose restrictions or requirements, and bills are introduced to do so in every session. Vermont also has a history of forced sterilization, a procedure used during the eugenics movement to prevent certain people with disabilities or people from some ethnic groups the choice of pregnancy or procreation. The passage of Article 22 would prevent a Vermont Legislature from imposing restrictions or requirements on reproductive health care unless there is a “compelling state interest” and that any prohibitions or requirements follow “least restrictive means.”

The “compelling state interest” clause imposes the strictest level of legal scrutiny for justifying any attempt to deny reproductive liberty. Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of a law. If the State were to impose a restriction or requirement that denied reproductive liberty to a person or class of people, the State would have to prove in court that there was a compelling interest to do so, which is the highest legal bar. In other words, the “compelling state interest” language makes the amendment stronger and more guaranteed.

The “least restrictive means” language is another part of strict scrutiny legal review. In the unlikely event that the State could prove a “compelling state interest,” the State could only impose requirements that are as narrow and least restrictive as possible. The State could not impose a broad prohibition or requirement to meet the state’s compelling interest. Again, this makes the amendment stronger and more protective of reproductive liberty.

While state laws and state constitutional protections do not override federal laws, the recent U.S. Supreme Court decision Dobbs v. Jackson, which overturned Roe v. Wade, asserts that decisions on how and if to regulate abortion should be left to state legislatures and citizen voting: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’” Therefore, in order to ensure reproductive autonomy and reproductive health care as a fundamental human right in Vermont, it is crucial that not only current Vermont law permit access to comprehensive reproductive health care, but that voters in Vermont pass a state constitutional amendment that also explicitly establishes the right to reproductive liberty.

Process, Timeline, and Debate

Amending the Vermont Constitution is a difficult process, by design. It requires a lengthy discussion and intense scrutiny over multiple years and two successively elected legislatures, and a vote of the People of Vermont, before the language of the constitution can be changed. Opponents of the amendment assert that legislators who support the amendment refuse to debate those who do not; however, legislators have been debating the contents and implications of Article 22 in depth and discussing the details of the amendment for the past four years. There is a lengthy public record of our work, including research, diverse testimony, press reports, vote tallies, and recorded debates both in committee and on the House and Senate floor.

In January 2019, senators introduced Proposal 5, which was referred to the Committee on Health and Welfare for testimony, debate, and agreed-upon changes. On April 4, 2019, Proposal 5 was debated on the Senate floor and after a comprehensive explanation of the amendment (see p.541 of the official 2019 Senate Journal), the Senate voted 28-2 to approve Proposal 5. This process was then repeated in the House of Representatives and after a lengthy debate, the House approved the proposal on a vote of 106-38 on May 7, 2019. A full list of witnesses, copies of written testimony, and a record of action on Proposal 5 during the 2019 legislative session can be found on the General Assembly website. After the 2020 General Election, when new members of the General Assembly had been elected, Proposal 5 was required to be re-approved by both the Senate and House. It was passed by the Senate on April 9, 2021 and by the House on February 8, 2022. You can review the 2021-22 record of action here or read my own statement on the Senate floor before voting a second time to approve the amendment. 

Proposal 5 was fully vetted and debated by legislators with diverse perspectives, and all of us who wanted to speak up to discuss it did so. To claim that Proposal 5 has not been well debated by legislators is disingenuous. It passed both chambers of the Legislature overwhelmingly twice, under two different House speakers and Senate presidents.

Vermont legislators have done our work. Now it is time for the People of Vermont to vote on whether to amend the Vermont Constitution to include Reproductive Liberty as an explicit right for all Vermonters. In order to ensure future access to comprehensive reproductive health care and protect the personal reproductive autonomy of individual Vermonters, I encourage you to vote to approve Article 22. I believe in democracy and our state’s electoral process, and will respect the decision of the majority of voters. Exercise your right to vote on or before November 8, 2022. Thank you.