by Anne Donahue
Nicholas Boke, in his recent commentary entitled “And so it begins,” is buying into the narrative perpetuated by Planned Parenthood, the ACLU and others, that Article 22 merely codifies Roe v Wade — when in fact it goes beyond Roe v Wade and beyond abortion.
The language as it will appear on your general election ballot is here:
Article 22. [Personal reproductive liberty]
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.
Nothing in this proposal of amendment refers to “women,” “adults,” or “abortion.” The use of the word “individual” means the amendment could apply to any age or gender. If a man’s right and a woman’s right were in conflict, the courts would decide which prevailed, potentially to the detriment of the woman.
“Personal reproductive autonomy” includes abortion throughout pregnancy, but much more and well into the future, subject to future court interpretations, making decisions that will be removed from public participation.
The use of the phrase “compelling State interest” is a directive to the courts to use the highest standard of review in order to prevent interference, restrictions, or limitations on any case pertaining to personal reproductive autonomy.
The US Supreme Court in Roe v Wade expressly rejected the concept (embodied in Article 22) that women have an absolute right to have an abortion at any stage of pregnancy for any reason.
So the notion that Article 22 and Roe v Wade are similar is false.
That fact was proven during an exchange in the House Human Services Committee.
Eleanor Spottswood, of the Attorney General’s Office, was asked by Rep. Carl Rosenquist about legislation he introduced declaring fetal personhood at 24 weeks. Rep. Rosenquist said he assumed such legislation would prevent abortion after 24 weeks.
Her answer was: “The extent that that statute would interfere with a woman’s right to reproductive autonomy, or a pregnant person’s right to reproductive autonomy, that portion of the bill would not be upheld [as constitutional] under Proposal 5.” (Article 22)
Boke is correct that a majority of Vermonters do support some level of legally unrestricted access to abortion.
But unrestricted, unregulated abortion through all nine months of pregnancy is opposed by 90% of Americans, according to a poll conducted after the Dobbs v. Jackson Supreme Court decision overturning Roe v Wade by the Harvard Center for Political Studies and The Harris Poll.
In response to the question, “Do you think your state should allow abortion…” the answer “up to 9 months” only garnered 10% support. The next option, “up to 23 weeks,” only garnered 18% support.
Boke also criticizes Vermonters for Good Government for raising the fear that health care workers could be required to participate in those procedures that violate not only their conscience but are contrary to their best medical judgement.
Here again Boke is in error.
The legislature has never taken up bills I have proposed on conscience protection – something addressed in all but one other state. That establishes a clear legislative intent to deny it as a compelling interest.
Laws in the future could explicitly require participation under Article 22, including placing professionals’ licenses at risk should they decline to participate in a person’s constitutionally protected right to personal reproductive autonomy.
Given that state constitutional rights — unlike federal ones — can be enforced on private parties, individuals could also sue providers directly to force participation in order to ensure their access to this right.
In light of national events, It is tempting for people to jump on the “protect Roe v Wade” bandwagon as a rationale to support Article 22.
But the threat to abortion rights simply isn’t true in Vermont.
Article 22, creating an unrestricted right to abortion throughout all nine months of pregnancy in our Constitution, is not reflective of Vermonters’ collective values.
Rep. Anne Donahue, Northfield
The author represents Northfield and Berlin in the Vermont Legislature, where she is Vice-chair, House Health Care Committee. She is spokesperson for Vermonters for Good Government.