Donahue: proof that Article 22 isn’t same as Roe V. Wade

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.

Anne Donahue

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. 

Categories: Commentary

7 replies »

  1. I almost hope this passes (though I’m voting against it) as it appears to leave the door open for biological fathers to attempt to legally prevent an abortion of their child – you know, “reproductive liberty” and all that!

    The last I knew – it takes TWO individuals – a MALE and a FEMALE to create life. I realize leftists no longer believe women exist, and/or genders can swap out — however, science dictates otherwise.

  2. Let’s take this same male + female argument one step farther into the Twilight Zone.
    If the biological father insists upon an abortion, but the biological mother elects to keep the child, is the father then within his rights to refuse to financially support it ?

    • What a great question.If this passes,the State is really opening itself to a serious constitutional challenge.

      • Pretty sure that’s why they weasel worded the “compelling state interest.” They will use the clause to restrict men but not women. The indentured slavery amendment ought to end both alimony & child support though. 😀

  3. As I read the above quote I see one glaring issue that no one is bringing up so I will. I see The word STATE, I see that being a right not for you and me but for the STATE to decide what will happen to me and you , us or whatever. Please remember the Patriot Act , so full of lawyer speak , so they can do as they see fit for our “safety” , just another hit on OUR liberty. Not everything these clowns write to put into law is ACTUALLY good for those or any of us that it is written for. As a person who is never gonna get pregnant except, for the killing of an unborn child when so many other options exist, it is not my problem it is the conscious of the woman who is getting that done to her.(unless she is forced) As my wife puts it, “What if the STATE decides that you cannot have a baby for what ever reason?”. This is a push to get We the People to relinquish rights that we already have, not “codify ” them into law. Remember a Constitution is about LIMITING GOVERNMENT not us. Just remember that come voting time. Lastly, I have said this before and i will continue to ask and just never get an answer, The question is as follows. Who asked you to do this? Name them. Who told you that their life was so full of hardship and deep deep oppression that you just have to put a stop to it? What are their names? How much money have they given you? Who of you could have been spending time fixing REAL problem here in VT? I will NOT tell anyone how to vote. Read it and you decide. Or is this a situation where the real impact of this atrocity is not seen until it is made law, like they did w/ “obama care” the affordable care act. As Nancy put it….” You will have to pass it before you know what’s in it. ” This is bad law all around

  4. I appreciate this discussion and Anne Donahue’s courage to have it.

    Despite one’s position, feelings, or the discomfort we have in its consideration (a necessary aspect of assuming responsibility for personal actions in any case), isn’t it about time society openly has these conversations, rather than sweeping the ‘dirty little secret’ under the rug – as Row v. Wade prescribed?

    Keep in mind that the Roe decision was based, in large part, on the ‘privacy’ issue, i.e., ‘Don’t ask, don’t tell’.

    After all, the SCOTUS decision didn’t change anything – except to put the decision-making process back in the hands of the States and the people where it belongs – democracy’s many laboratories. Unless, of course, one believes the Judgement of Solomon should be sacrosanct. For, if that’s the case, we should all be cautious about what we dictate… or choose to sweep under the rug.

  5. Ironic and noteworthy that after all the VT Legislature’s hand wringing and virtue signaling and the renaming of UVM buildings because of peoples’ support of the eugenics movement 100 years ago, we are now poised to enshrine in the Vermont Constitution the most pervasive method of self-imposed eugenics. Thank you Rep. Donahue for your thoughtful and concise insights to this proposal which goes way beyond what Roe vs Wade protected.
    (I am pro-choice, but let’s just be honest and refer to late term abortion by it’s accurate, scientific and legal description: INFANTICIDE )