by Tom Koch
Here is the full text of Article 22, which is on the ballots that are about to be mailed to every voter in Vermont and would add Section 2, Article 22 to the Vermont Constitution:
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.
Article 22 sounds harmless and will probably pass on November 8.
But it shouldn’t. Why not?
First, it is completely unnecessary. For the last 50 years, since the case of Roe v. Wade was decided, the Vermont legislature—and I think it is safe to say, a substantial majority of Vermont’s citizens, myself included—support abortion to some degree, usually with some restrictions. Two years ago, the legislature passed the most sweeping endorsement of abortion rights in the nation. Our law now legalizes late term abortions—including, in extreme cases, the killing of a perfectly healthy baby ready for birth after a full term pregnancy. Our laws also endorse giving an abortion to a young girl—12 years old, perhaps—without ever having her parents know about it. I would venture to predict that none of that is about to change in the foreseeable future. A strong majority of Democrats, and a significant number of Republicans, support abortion, and no constitutional amendment is needed to prevent the current law from being amended.
Second, nobody—and I mean nobody—can tell you what this proposed amendment really means. The term “personal reproductive autonomy” is not defined anywhere in Vermont or American jurisprudence. It is a term invented for this proposed amendment, but even the sponsors of the amendment admit that they do not know what the term means. When asked about the meaning, their answer was, “The courts will have to decide.” Well, when I was a legislator, I thought part of my job was to make sure that the legislative intent was perfectly clear in the written words that the legislature passed, and if the wording of a bill was vague, I voted against it. Putting it bluntly, it is absolutely irresponsible to pass legislation if you don’t know what it means.
Third, note the reference to “an individual’s right to personal reproductive autonomy.” The proposal doesn’t say “a woman’s” right, but rather “an individual’s” right. If nothing else is clear in this proposal, it is that it would recognize a right that extends beyond women. So—and the courts will have to decide this as well—does the proposed amendment give the father of a fetus some rights that men have never had before? Ever since Roe v. Wade, people have spoken about “a woman’s right to do what she wants with her body,” and that the matter of an abortion is “between a woman and her physician.” Does this amendment now change that? Suppose a woman wants to carry her baby to term, but the father wants her to have an abortion; does a court now get to decide the baby’s fate?
Fourth, the advocates for this amendment will tell you that its purpose is to protect a woman’s right to an abortion, in view of the recent United States Supreme Court decision overruling Roe v. Wade. But if that is the case, where is the word “abortion” in this amendment? It’s simply not there, and it would have been very easy to put it there, and when key words are deliberately omitted, I always wonder what else is going on! Human cloning, perhaps? Genetic engineering such as we have never even imagined? I don’t know, but the possibilities are myriad.
Fifth, this proposal goes far beyond Roe v. Wade. While some proponents will try to tell you that all the proposal does is write Roe into our state Constitution, now that the United States Supreme Court has overruled Roe, that is clearly not the case. Roe v. Wade never protected a woman’s right to have a late term abortion, and it never forbade parental notification when a child (and I mean child, not woman) was seeking an abortion, so long as there was a judicial by-pass if the child had legitimate reasons why her parents should not be notified. No, this proposed amendment to Vermont’s Constitution goes far beyond Roe v. Wade. How far, and in what direction or directions, we will know only if we take the risk and pass this amendment.
As I said at the beginning of this article, Article 22 probably will pass. But it should not, and I hope I have sufficiently made clear some of the reasons why it should be defeated.
Tom Koch is a resident of Barre Town and represented the town in the Vermont House of Representatives for 22 years.