by Annisa Lamberton
As the science behind fetal development becomes more understood – when an unborn child can feel pain, show brainwave activity, or form functioning organs, etc., – it makes sense that we are all taking a fresh look at policies surrounding abortion.
In many states this knowledge, new since 1973, is culminating in laws that provide more protections for the developing unborn child, such as disallowing abortions after a detectable heartbeat or through partial-birth procedures.
Roe v. Wade attempted to balance the interests of the mother, the unborn child and the state. In Vermont, however, the legislature is taking us in the opposite direction with the proposed constitutional amendment, Proposal 5 (aka Article 22): an effort, in part, to strip the unborn of any current or future consideration, legal recognition, or protection at any point during pregnancy.
Although advocates of Proposal 5 often cite respect for Roe v. Wade as a rallying cry, what they are calling for is, instead, a radical departure from that Supreme Court precedent. Roe v. Wade, after all, only guarantees a woman’s right to an abortion throughout the first trimester of pregnancy. Under Roe, some legal restrictions recognizing and protecting the unborn child can and do kick in during the second trimester, and outright bans on late-term abortions during the third trimester, with some medical exceptions, are normal.
Most people who consider themselves pro-choice are “Roe v. Wade pro-choice”: keep abortion legal in early stages, but with reasonable restrictions and regulations, especially regarding late-term abortions. But the activist group of Vermont pro-abortion campaigners is trying to force voters into a mold where “pro-choice” means no checks on abortion throughout all nine months, right up to the point of birth. Prop 5/Article 22 is an “all or nothing” amendment leaving Roe moderates cringing at its possibilities.
This is what they’ve given us with Proposal 5, which says:
“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.”
While this language is dubiously vague, there is no dispute that, if ratified, the amendment would mean the state of Vermont will be virtually powerless to follow Roe by enacting any balanced law to protect viable children. For example, Vermont has no current law protecting against loss of pregnancy due to criminal abuse, and under Prop 5/Article 22, no such law would be considered. Fetal homicide laws or enhanced penalties exist in 46 states. Vermont is an extreme outlier.
Additionally, a mother could terminate the life of a healthy and viable eight-and-a-half-month-old unborn girl because her partner demands a boy, and the state of Vermont could not “deny or infringe” her right to do so. The impossibility of adding these lacking protections was confirmed in testimony.
When asked whether a possible future law declaring that a fetus is a person at 24 weeks gestation, when it could live outside the womb, would be allowed under Article 22/Prop 5, Eleanor Spottswood, Vermont Solicitor General said:
“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 under Prop 5.”
Again, this looks nothing like Roe v. Wade, and it does not reflect where most Vermonters stand. Proposal 5 advocates’ constant cloaking of Proposal 5 in the rhetoric of “preserving Roe v. Wade” at the state level, should the Supreme Court overturn it, is a misleading tactic.
If Vermonters want to protect the precedents set by Roe v. Wade with state law or even a state constitutional amendment, the language and intent of any such legislation should clearly reflect the balance and legal precedents of Roe v. Wade. Proposal 5 does not.
Annisa Lamberton is the official spokesperson for Vermonters For Good Government and resides in Middletown Springs.