Strong: 5 Key Issues with Prop 5/Article 22

by Matthew Strong

There have been a lot of conflicting arguments about the state constitutional abortion amendment, Proposal 5/Article 22, that will be on the ballot this fall for all Vermont voters to weigh in on, as well as accusations of lies and misinformation. Here are five key issues that all voters should know about before they say yes or no.

Abortion on Demand Throughout All Nine Months. Proposal 5/Article 22 would prohibit (by making it unconstitutional) the legislature from passing any laws that regulate or restrict abortion at any point during pregnancy. This includes any regulation or restrictions on late term abortions; those that take place after the unborn child can survive outside the womb. Multiple polls show solid majorities of as much as 90% of Americans think some regulation of abortion after 23 weeks is commonsense and compassionate policy, allowing for exceptions for the health and safety of the mother.

Not Reflective of Roe v. Wade. The reason that Proposal 5/Article 22 is a radical departure from Roe v. Wade is that it constitutionalizes abortion on demand throughout all nine months of pregnancy. Roe only established an absolute right to abortion in the first trimester of pregnancy, after which it recognized the moral and practical need to allow lawmakers to find a balance between the rights of the mother, the unborn child, and society at large. Proposal 5/Article 22 throws the balance established by Roe out the window. Those saying Proposal 5/Article 22 just codifies Roe v. Wade at the state level are not giving accurate information about the true nature of what they are proposing.

Not Necessary Following Overturn of Roe v. Wade. The overturing of Roe v. Wade by the Supreme Court returned authority regarding abortion policy to the state legislatures. In anticipation of a possible overturing of Roe, the Vermont legislature passed Act 47 in 2019, which clearly says, “The State of Vermont recognizes the fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion,” as well as confirming access to contraception, etc. This is and will be Vermont law regardless of whether or not Proposal 5/Article 22 passes. It is misleading to say we need to pass Proposal 5/Article 22 to protect abortion rights.  Moreover, not only is Proposal 5/Article 22 unnecessary, it has the potential in some cases to undermine women’s rights in Vermont.

A New Constitutional Right to “Reproductive Autonomy” for Men. The word choice in the language of Proposal 5/Article 22 — which does not mention abortion, women, or pregnancy but instead guarantees a right of “personal reproductive autonomy” that “shall not be infringed” — that makes it inclusive of all individuals, women, and men alike. While Proposal 5/Article 22 doesn’t give “people who become pregnant” anything they don’t already have under Act 47, it does give men, or “the people who can impregnate,” this new, undefined right to reproductive autonomy that will now be equal to and potentially in conflict with any similar right enjoyed by women. How this new legal dynamic plays out will be determined entirely by clever lawyers and unelected judges, as our democratically elected lawmakers’ hands will be tied by Proposal 5/Article 22.

“We Go to Court!” When the ACLU testified before the House Human Services Committee a member asked, “What is a man’s right to reproductive autonomy, and what happens when that right comes into conflict with the woman regarding the same unborn child?” It was obvious that this problem inherent in the language of Proposal 5/Article 22 had never occurred to her, and she struggled to answer the question. The answer finally agreed upon was, “My understanding is that when rights are in conflict, we go to court, and that is the role of the courts to decide, or a judge…. And where historically this country has gone when there are conflicts of rights is we go to court, and we have confidence in the courts’ decisions.” Judges deciding whether or not women are allowed to have an abortion, as opposed to women and their doctors, is a clear step back from the women’s rights clearly defined under the status quo of Act 47. Why would pro-choice Vermonters even consider opening this legal can of worms when by voting NO on Proposal 5 their rights would be totally secure under existing Vermont law?

For these reasons, and others, we advocate Vermonters to vote NO on Proposal 5/Article 22. 

The author is Executive Director of Vermonters for Good Government.

Categories: Commentary

6 replies »

  1. 6. “Unless justified by a compelling state interest”

    What happens when the climate council says that population of human beings is too detrimental to the climate and therefore the state is now interested in not having as many people because they create too much methane?

    In 70 years are we going to be apologizing to people for eugenics again?

  2. Men’s “reproductive rights” will be denied by citing “compelling state interests”. However it won’t stop there. In the not to distant future “compelling state interest” could actually be used to create “A Handmaids Tale” whereby teachers unions, business leaders and so government decide that population declines are excessive and must be reversed.

    There is no mention of “compelling state interest” in any article of the original bill of rights. It make me wonder Why this qualifier is included here.

    • Yes, the whole point of the state interest clause is to refuse men the rights that the amendment wants to afford women, while appearing to be gender neutral and pretending to be egalitarian. If men don’t pay for women with children, the state will have to, and most single mothers aren’t making it on their own either way. The state will thus have a “compelling interest” in maintaining child support, overwhelmingly paid by men. Men will not have the same whimsical luxury of escaping parental responsibility that women do- between abortion, safe haven laws & preferential family courts. I’m glad someone else finally sees this.

      • What surprises me. Is that the campaigners who support this ammendment insist it protects abortion rights when it doesn’t. It places all reproductive rights, and all rights to private relationships under the jurisdiction of the courts. Nothing in this ammendment would stop a Court from ordering forced abortions, forced pregnancies or even forced breeding programs. The only requirement would be for a judge to declare a “compelling state interest”.
        So for a citizen’s point of view we are asked to vote for something that would either leave things the same (current law) or make things worse (potential new reproductive laws). There is no scenario that I can see that would make things better than they currently are.

      • The whole point of this proposal is that it has ‘no point’. It is nonsense presented by nonsensical people. The term ‘man’ or ‘male’ is nowhere to be found in its language. And the ACLU (that’s American Civil Liberities Union), obviously, wouldn’t know a civil liberty if it bit them in the behind.

  3. Article 22, in its whole, is a knee-jerk, ill-conceived, thoughtless attempt by politicians and other political elites to appear useful. It’s dysfunction is typical of every piece of legislation they contrive for this purpose. I’ve posed the same questions to some of the candidates that support this amendment, and they mumble and bumble their answer to the point of shamefulness. None the less, they persist. They have no shame.

    The question is: do Vermonters in general have any common sense? Or will they be equally shameful?

Leave a Reply