by John Klar

A three-year battle in Vermont is coming to a head over Proposal 5, an amendment to the state constitution that would enshrine existing Vermont abortion “liberties” to terminate pregnancies up until birth. 

Roe v. Wade established “viability” as the determinant of when state governments hold a “compelling” interest to protect children. The current challenge to Roe in the Supreme Court concerns a Mississippi law that would ban abortions after 15 weeks. Vermont’s Proposal 5 essentially defines fetal viability at 40 weeks (birth), ignoring both Roe and the science of human development. 

The Supreme Court in Roe v. Wade sought to balance not just competing moral and political views, but the two lives at issue:

The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus… Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’ With respect to the state’s important and legitimate interest in potential life, the ‘compelling’ point is at viability.

Modern medicine has revealed the miracle of human development, increasing public awareness of that second person even acknowledged by Roe. This reality drives increased public opposition to late-term abortions: recent polls show 80 percent of Americans oppose them. Medical science is also clear about what the Supreme Court described as viability:

Periviability, also referred to as borderline viability, is defined as the earliest stage of fetal maturity (i.e., between 22 and 26 weeks gestation) when there is a reasonable chance, although not a high likelihood, of extrauterine survival.

The current Mississippi dispute, Dobbs v. Jackson Women’s Health Organization, seeks to protect unborn children from abortion prior to current scientific consensus on viability, at 15 weeks. Abortion proponents portray that as restrictive, and indeed treat any objection to late-term abortions as moralizing religiosity, yet secular France is currently embroiled in a parliamentary dispute over whether to expand long-standing restrictions on abortions there from 12 weeks to 14.

Vermont’s Abortion Law

Vermont established “abortion protections” through delivery in 2019, in its “no-limits” H.57, overcoming Republican efforts to impose a 24-week limitation, or to exempt minor girls. Proposal 5 now seeks to cement those same horrors into the Vermont constitution, and compel conservative elected representatives to swear an oath to its abhorrent provisions.

Women and young girls around the nation and world (Vermont provides free abortions to unlawful entrants) who make last-minute decisions to terminate their pregnancies may have no place to turn for “rescue” except the ghoulish Green Mountain State.

Vermont has long embraced this barbaric extremism with regard to the unborn. Its leftist legislature has steadfastly avoided acknowledging fetal personhood at any age, which leaves pregnant women gravely unprotected from domestic abusers who murder their unborn children — there is no Vermont recognition of these as homicides, even if the child is viable.

In one heartbreaking case, a young mother lost her twins at six months’ gestation when she was struck by an impaired driver. The Vermont legislature has repeatedly refused to honor her loss, or protect other mothers whose children are similarly murdered. Instead of acknowledging Roe’s “compelling” interest to protect the constitutional rights of viable children, Vermont uses its laws to deny the acknowledgment such children ever lived.

Proposal 5 Is Even Worse

Proposal 5 tightens that noose: unborn children in Vermont are not safe from murder by abortion when viable, only when they pass their mother’s cervix and breath air on their own. Vermont’s Proposal 5 will legally deny the recognition of the existence of that person Roe federally acknowledged in its “viability” rule. Thus Vermont has scorned even Roe’s political, moral, and scientific balancing efforts. 

The Vermont progressive minority that has belched forth this abominable legislation is hell-bent on “preserving” its obscene accomplishments in constitutional cement. Planned Parenthood has even improperly cooperated with the Vermont attorney general’s office. Progressives invoke the eugenics horrors and the 15-week Mississippi attack on Roe as justification for Proposal 5. Vermont also offers sterilizing transgender hormone therapies to minor children without parental consent, in the same hospital that performs the majority of the late-term “procedures” in the state.

Supreme Court Must Address this Inequity

Vermont progressives are inviting the fall of Roe they fear. If states refuse to protect that second life acknowledged by Roe, and public sentiment continues to escalate in revulsion to abortion because of growing scientific awareness of the miraculousness of fetal development, is it not appropriate for the U.S. Supreme Court to take the required next step? Certainly there is no state constitutional recourse in Vermont on behalf of tortured viable children if its Constitution is amended to preempt that very possibility.

Roe v. Wade concerned the constitutional right to privacy of women while acknowledging a constitutional right to human personhood in the unborn at viability. It established federal preemptive boundaries to protect the first class, but left it to states to protect the second — and Vermont isn’t.

It is illogical for the U.S. Supreme Court not to address this glaring jurisprudential inequity. Does the U.S. Constitution contain a “right” for women to privately murder viable children? Roe specifically held they do not. But Roe did not articulate federal boundaries of constitutional protection for that child. As Justice Potter Stewart noted in his concurrence: 

….the protection of a person’s general right to privacy –  his right to be let alone by other people – is like the protection of his property and of his very life, left largely to the law of the individual States.

Many speculate that Mississippi’s law may be affirmed by the U.S. Supreme Court. The New York Times proclaims “If the justices were to approve the law, Roe’s viability standard would no longer be the law of the land.” That does not bode well for Vermont’s extremist left minority. 

The Supreme Court must declare that there is a gestation date beyond which women cannot constitutionally exterminate their young in the womb, and acknowledge what science proves: there is a separate human at issue, who must not be marginalized. Even if at a post-viable stage of 30 weeks, once federal fetal personhood is rightly acknowledged (much like when women and racial minorities were included in the Constitution’s protections), unconscionable laws like Proposal 5 will collapse under federal preemption.

Extremism such as Vermont’s demands federal rescue. 

John Klar is an attorney, writer, pastor, and farmer who lives off-grid in Vermont. John blogs for Mother Earth News on agriculture issues, and maintains a weekly commentary in The Newport Daily Express. Republished from Feb. 7 The Federalist.