Bioethicist: if hospital changes late-term abortion policy, Article 22 would prevent restrictions

By Pete Gummere

Much fear used to promote Proposal 5 has been based upon what has happened in some states with a very different political climate. Part of the rhetoric asserted that when the US Supreme Court issued the Dobbs decision overturning Roe vs, Wade, Vermonters responded with Proposal 5. That is false. The process began in 2019, more than two years before the Dobbs case was filed at the Supreme Court. 

Peter Gummere

In fact, Roe vs. Wade has never had an impact on Vermont law, nor will the Dobbs decision. 

In fact, abortion had been legal in Vermont for a full year before Roe vs. Wade was decided.  Abortion was legalized by a Vermont court decision Beecham vs. Leahy on January 14, 1972.  A year later, the ruling in Roe vs. Wade, was issued but added nothing to the access to abortion in Vermont. Abortion access in Vermont was established by the State Supreme Court in Beecham. The Vermont legislature never acted to impose any restrictions on abortion despite Beecham leaving open the possibility of restriction, but not prohibition.  Act 47 of the 2019 Legislature secured the Beecham decision in statute with no restrictions.

Some authors (such as but not only, Rep. Maxine Grad) have asserted that there are no elective late-term abortions (i.e., 22 weeks gestation or more) in Vermont because all late term abortions are done at UVM Medical Center, and only for grave fetal abnormality or significant threats to the well-being of the mother, and a case-specific approval of the Medical Center Ethics Committee.

Rep. Grad also asserted that if UVM eliminated the Ethics Committee or otherwise changed their standards, the Legislature would simply act to reinstate the restrictions currently established by the Medical Center.  But that reinstatement would violate the very constitutional amendment being debated right now. If the Legislature had wanted to restrict it after 22 weeks, such eventuality was not anticipated by those crafting the amendment. That was never the intent of the Legislature. 

Also, no matter how robust the UVMMC Ethics Committee might be, an ethics committee primarily has an advisory role.  Any authority is derived from the institution itself.  A patient with an explicit constitutional right to “reproductive autonomy” including a given procedure would not be denied the procedure despite the objections of an Ethics Committee or a hospital policy.  

The legislature has repeatedly refused to take up conscience protection concerning abortion and other medical services.  Courts frequently take notice of legislative intent when handling difficult cases.  UVMMC would have grave difficulty in justifying its denial of service to a patient. Afterall, clinical professionals and medical institutions are quite risk-adverse; they do not want to end up in court.

Some have even argued that professional standards of care recommended by the medical specialty societies would have to be observed.  Does anyone believe that a medical professional society has the authority to override a state constitution?

But the fact is that Proposal 5/ Article 22 applies statewide, not just to UVM.  Would out-of-state second and third trimester abortion providers come to Vermont to take advantage of a constitutional protection they would have? And would this involve locations beyond UVMMC?    

As has often been noted by proponents of Proposal 5, especially when being asked what else is included in the vague language of the measure, this amendment goes beyond abortion. The authors wanted it to be broad enough to include emerging technologies. But how far?  What else is being masked by the vague language of the Proposal?  The answer has consistently been, “The court will decide.”

Finally, I ask you to envision what happens if this measure is enacted. What new technological horizons will emerge? 

There is genuine potential for late second and third trimester abortions to be done in Vermont.  Of course, that would most likely be done at UVMMC or one of their affiliates. The organs and tissues could be harvested.  UVMMC is a major teaching and research institution with a medical center that is operating at a deficit. What a creative way of offset those losses with a new funding stream supporting research on the tissues harvested on-site! 

Moving beyond the clinical world, let’s look out at the streets, not just in Burlington.  If “personal reproductive liberty” becomes a constitutional right, I suggest that could mean that laws banning prostitution become unconstitutional infringements on autonomy.  That would mean that almost any town in the state could have its own “red light district”.  

And, since the amendment applies to “individuals” not just adults, what rights do parents give up?  What rights are minors – even young children – given.  Are we asking children to make adult decisions without input from their parents?

For a minimum, Proposal 5 is too poorly crafted and ambiguous to be approved.  It would foster a variety of new social problems, and would  probably require a new constitutional amendment.   The Proposal 5/Article 22 constitutional amendment should not be passed by the voters. Please join me in voting “NO” on Proposal 5/ Article 22.

Pete Gummere, M.S., M.A, is a certified bioethicist, with more than 10 years of hospital ethics committee membership, and additional experience as Chair of the Ethics Consultation Team.  He lives in St. Johnsbury.

Categories: Commentary

8 replies »

  1. Sadly, I totally agree with you Mr. Gummere. Several of us have attempted to spread our concerns, but it appears that messages such as yours have fallen on “deaf ears”. Thank you for this article.

  2. Thank you for this article! Representative Maxine Grab may be incorrect. According to Dr. MacAfee, who appeared on the recent WPTZ In-Depth program about Article 22, it’s not that there are no ELECTIVE late term abortions in Vermont. On the In-Depth program, Dr. MacAfee said that the hospitals have made the decision to SEND individuals who want ELECTIVE late term abortions out of state to get them. Obviously, hospitals will probably no longer be able to send these individuals out of state if Article 22 passes (in my opinion). This is probably only one reason why wording of Article 22 is vague.

  3. A great article, thank you Mr. Gummere! We all need to pray that the Lord would be gracious and merciful to us in this state of Vermont. We also need to get out the vote which is our voice and tell everyone to do the same. Help us Lord!

  4. A recent article reported a female Ohio teacher had sex multiple times with a 17 year old student. Since there are no age restrictions article 22 would make this activity a constitutional right in Vermont.

    • Actually Lester, Article 22 doesn’t “make this activity a constitutional right in Vermont”. It doesn’t prohibit the activity either. Depending on what constitutes a ‘compelling State interest’ (which could be anything), Article 22 declares that it is ‘the State’ that determines reproductive rights. The problem with Article 22 is that it does nothing, except ensure future judicial anarchy.

  5. Thank you Mr. Gummere for really spelling out what Article 22/Proposal 5 is all about-giving people the full picture. The children —people don’t forget the children—-making adult decisions that will possibly ruin their lives forever!!! But these people don’t care if it destroys children because they are making money and they have no ethics or morals.
    I know this for a fact because I’m a substitute school nurse and planned parenthood has already entered the public school system giving out free condoms starting in middle schools. Planned parenthood will give students free STD treatments if infected without their parents knowledge, so how far do you think planned parenthood has to go to convince young people who are confused to start taking puberty blockers???or strongly consider gender reassignment surgery??? And again probably without a parents consent. Remember planned parenthood wants to push these procedures to make money. Mental health problems after an abortion with adult women has always been high something around 80% who exhibit anxiety, depression issues afterwards. Remember planned parenthood doesn’t care!!! The pandemic has done a number on the children’s mental health with increased anxiety, depression, even some have committed suicide—-what do you think Article 22 will do? Vote NO on Article 22.

  6. Consider Tom Evslin’s article above, ‘What the Coming Global Population Will Mean’. What will it mean? Will it become a ‘compelling State interest’? The possibilities are infinite.

    The problem with Prop 5/Article 22 is that it depends entirely on an undefined, ‘compelling State interest’. And because State interests change, especially without definition or restriction, anything is possible. Anything. There is nothing in this amendment to guaranty Reproductive Liberty – no matter what one thinks about abortion policy.

    The overturning of Roe did one thing. It put the ownness for determining Vermont’s reproductive rights on the citizens of Vermont. Article 22 does nothing more than abdicate that responsibility to legal anarchy.

    If I were to guess, the Article 22 amendment was proposed by the Vermont Bar Association. Its members are the only people who will benefit from it as they argue what constitutes a ‘compelling State interest’ in the impending plethora of lawsuits sure to follow.

    Vote NO on Article 22.

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