Donahue: Proposal 5 threatens health care provider conscience protection

By Rep. Anne Donahue, Washington-1 (Northfield, Berlin)

The importance of conscience protection for health care workers, most often in the context of permitting hospital staff to request to be excused from participation in abortions, has broad public support and is endorsed by the Vermont Medical Society. Yet few have addressed the current risks of erosion of those rights of conscience in Vermont if Proposal 5, the “reproductive liberty amendment,” were to become a part of our state’s constitution.

Rep. Anne Donahue

There should be deep concern about the impact that Proposal 5 could have on our state’s hospitals, health care delivery and workforce crisis through overturning such protections.  There are inaccurate perceptions about the scope and intent of this constitutional amendment, as reflected in a November article in VT Digger which described its purpose as to “protect the abortion rights spelled out in the U.S. Supreme Court’s 1973 Roe v. Wade decision.”

In fact, the unusual wording of the constitutional amendment would do three key things: it would protect any abortion, for any reason, until the moment of birth (unlike the balance of state interests created in Roe for third trimester pregnancies), likely rendering null any individual hospital’s abortion policies including Conflict of Care policies; it would extend protection to any health care service that relates to ‘personal reproductive autonomy’ with no known definition of how far that concept might extend; and it would turn any debate over that high bar of what constitutes a “compelling state interest” over to the Vermont courts. It offers no final word, but rather would be subjected to any number of future court interpretations.

I have again introduced a bill – H. 497 — for conscience protection for health care providers this year. Vermont is one of only two states that does not provide it by law.  Given the breadth of Proposal 5, there is a significant risk that hospitals could not independently choose to assure such protection. Extant shortages in medical professionals, particularly in ob/gyn practice and in nursing, would worsen as some providers decide to leave their chosen professions. In fact, it might be deemed discriminatory to permit conscience protections – or even for any hospital to fail to perform abortions.

If the legislature fails to act on conscience protection before voting to move forward with Proposal 5 this year, it will form an explicit legislative intent in the record that could inform the court to rule that a future-passed conscience protection bill would be unconstitutional. Even if such a bill passes, it is not clear that it will withstand the breadth of the amendment, but I think it is still worth the effort.

I hope that Vermonters will actively support this legislation.

The issues buried within Proposal 5 warrant consideration of the impacts on quality health care before making decisions about the constitutional change. Conscience protections and the impact on the workforce are a prime example of unforeseen consequences.  Full consideration of the implications – and the ways in which they go far beyond the instinctive appeal that “protect Roe v. Wade” has for many people – is crucial.

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5 replies »

  1. Thank you for your attention in this important Constitutional matter, Rep. Donahue.
    The issue of abortion is a complicated one involving arguments of religion, ethics, biology and law. Many polls have the country about evenly split on the issue of whether it should be legal to kill the unborn. With that kind of opinion split, at the very least, no taxpayer money should be used to provide such services, as codified federally in the Hyde Amendment.
    Besides taxpayers, the other group of people who should not be forced to involve themselves in the practice of abortion are health care workers who have a religious objection. This exemption SHOULD BE protected by the the First Amendment to the US Constitution. If, according to SCOTUS a wedding cake baker can refuse to be a PARTICIPANT in an event that he finds religiously abhorrent, then the same argument ought to apply to health care workers.
    The issue of whether abortion should be legal is separate and distinct from the issue of the legal protections that should apply to those who harbor a religious objection to their active participation in the procedure in their workplace. ( I am pro-choice and pro-Constitution)

  2. Regardless of the outcome of Proposal 5, Article 3 of Chapter 1 of the Constitution of the State of Vermont states in part: “nor can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia(r) mode of religious worship; and that no authority can, or ought to be vested in, or assumed by, any power whatsoever, that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship.”
    18th century writing may pose problems for some in the legislature to read and understand, but there are staff to assist them. Rep. Donoghue’s H.497 seems a requirement to comply with this Article. Likewise, Vermont’s Supreme Court Justices certainly should have the ability to recognize verbiage in this Article when presented with any litigation presented.
    As ignorance of law is not a defense for crime- so too, ignorance of law is no defense for Vermont legislative (in)action.

    Legal views cast aside, Did I not see video of our Governor just the other day decrying the lack of nurses in Vermont? I am sure he spent considerable time on the subject of workforce shortages in Vermont during his SOS speech. I’m also sure that some skilled health care staff avoid Vermont because of existing law, despite religious views.

  3. Killing babies is not health care. How do these wingnuts get elected? The only consolation I have, though I hate to admit it, is knowing that these monsters will eventually be judged.

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