Walch: ‘Compelling state interest’ in Article 22 recalls eugenics era

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By Erica Walch

We, the voters of Vermont, have two proposed constitutional changes on the November ballot. One clarifies language already in the Constitution about slavery, the other obfuscates and adds new language that is reported to be about abortion but as it reads is more about the State determining individuals’ life choices. 

The right to an abortion is already the law of Vermont. The language of the existing law reads “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.” That’s quite clear. Individual becomes pregnant, individual chooses how to proceed, State respects individual’s choice. It’s legal to get an abortion in Vermont now and the State can’t interfere with that right. 

The proposed constitutional amendment that voters will face this November 8 (Article 22) reads “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.” This is a meandering and nearly incomprehensible statement. Abortion isn’t even mentioned, but the State’s right to determine a citizen’s life course is. And that is frightening. 

Under what possible circumstances could there be a “compelling State interest” to interfere with “an individual’s personal reproductive autonomy” or an individual’s “dignity to determine one’s own life course”? Will the State suddenly show up and say that a certain baby should or shouldn’t be born or that certain people should or shouldn’t be allowed to reproduce? Or that a certain individual is not able to determine their own life course and the State will put them in an institution? 

Oh wait, that already happened. In the 1920s and 1930s, the State tried to “determine a better life course” for many and to “breed a better Vermont” by sterilizing and institutionalizing “delinquents, dependents and defectives”, that’s a quote from Act Number 174 of 1931, the “Act for Human Betterment through Voluntary Sterilization” when Vermont’s legislature decided there was a compelling State interest to take children from poor and native parents, lock “mentally defective people” in institutions, reduce the number of French-Canadians and force sterilization on those the State had deemed unworthy of having children – interfering with reproductive autonomy. 

In 2021, the Legislature apologized for the 1931 law, but in an irony clearly lost on them, immediately started crafting this new Constitutional proposal. What is up with the Vermont Legislature wanting to control people’s lives, reproduction, and liberty? What if a future legislature decided that no one earning less than a certain amount should be allowed to have a child, or that one child per family was plenty, what with dwindling

natural resources, the housing shortage, the teacher shortage, climate change, etc.? French-Canadians and Indigenous people were considered a scourge in 1931 (less than 100 years ago…), what if the legislature of the future decided that they’d achieve equity by stopping the reproduction of one ethic group or hyper-breeding another ethnic group? The State could decide that children with special needs or birth defects would be a drag on society and should be culled before birth; in 1931 special needs adults were sterilized so they wouldn’t have more “defective” offspring. All of those horrible scenarios would be permissible if this amendment passes. My body, my choice? Not with this amendment. 

Our state’s Constitution is a big deal. That’s why changes made to it have to go through a rigorous process and be approved by the citizens of the state. Any amendments to it should be well thought out, clearly written and should right a wrong, such as the other proposed amendment on the ballot this November which says “slavery and indentured servitude in any form are prohibited.” Clear as a bell. The current language (found in Article 1 of our Constitution) allows for slavery “bound by the person’s own consent” or “bound by the law for the payment of debts, damages, fines, costs or the like”. The existing language allows for a compelling State interest in servitude and an idea of “voluntary slavery” which is as free a choice as “voluntary sterilization”. The proposed amendment on slavery is clearly written, says what it means, and grants more liberty to individuals. Any voter reading it understands it. That’s what an amendment should look like. Imagine if the slavery amendment didn’t mention the word slavery or included the words “unless justified by a compelling State interest”. 

No matter what you think about abortion, you should vote against Article 22, which would put into the Constitution the right of the State to have the final say on who can and can’t be born and make decisions about the course of all lives in the state of Vermont.

The author is a Newfane resident.

Categories: Commentary

14 replies »

  1. Re: “…shall not be denied or infringed unless justified by a compelling State interest…”

    How is a ‘compelling State interest’ determined? Who makes the determination?

    • To those who are interested – and everyone ought to be interested – read up on the judicial review of ‘compelling state interest’ and ‘strict scrutiny’. The case of Prop 5 and its resulting Article 22 is the proverbial camel’s nose poking under the tent of individual autonomy. In this case, if the State can declare a ‘compelling state interest’ in one’s choice to terminate a pregnancy at any time during its term, the State’s ‘compelling interest’ can also require the termination of a pregnancy without choice, and, on the other hand, require that a pregnancy is taken to term, or require any aspect of a pregnancy.

      Yes, this is precisely what China did in its ‘one-child’ policy.

      The question that is paramount in this debate is the point that continues to be ignored. Specifically, when do constitutional protections apply to an individual? If an unborn human has individual standing when a pregnant woman is murdered (i.e., the murder is deemed to be a double homicide), does that standing end if the pregnant woman survives an attempted murder but her unborn child does not?

      And yes, the road to hell is paved with good intentions.

  2. Every word is truth here.Our freedom and constitution is being stolen . .I’ve know the history of eugenics ,We have witnessed China’s oppressive murdering policies.Have we really become that blind in America or just too lazy to learn what is really being stolen from us ,right before our eyes .

  3. The “compelling state interest” language requires the courts to use a legal standard called “strict scrutiny” to determine if a regulation of “personal reproductive autonomy” is allowable. No other right in the constitution has this requirement written into it, in effect making this the preeminent constitutional right – above freedom of speech or religion for example. The courts will decide what constitutes a “compelling state interest.”

    • And we know Sharon Toborg……how very efficient our legal system is……kid will be 10 before a decision is made…….then he/she/it will have to run away to avoid the potential decision ……

      • As ‘efficient’ as our legal system is (or isn’t), it is, nonetheless, the best system ever contrived in human history. We all have the opportunity to express our points of view here in a public forum, and later, more formally, in November. In my opinion, voting yes on Article 22 is the abdication of personal responsibility. We will get what ‘the State’ gives us – – whatever that may be. Or we can take responsibility for our God-given liberty and freedom and, as the common vernacular pronounces, ‘fish or cut bait’.

        The first tangible step for liberty is to vote NO on Article 22. Then the real work begins.

    • A ‘compelling State interest’ and ‘strict scrutiny’ are creations of the courts. In fact, this terminology is nowhere to be found in the Constitution. The closest match resides in the 5th Amendment, paradoxically, in which it is written that ‘No person… shall be ‘compelled’ in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; …”.

      • As has been shown over and again, humans and their logic are imperfect. The courts have, over time, made egregious rulings. Dred Scott comes to mind. And it is for this reason that our Constitution, protecting the rights of individuals to function freely (politically and economically), is such an amazing document. We can change our opinions. And the Constitution accommodates those changes better than any governance contrived by humankind in its history.

        Again, and as with the Dred Scott case, what we, as citizens, must now determine is whether or not an unborn human has constitutional protection. And if so, at what point in time does that occur. It is NOT an individual choice – – because it affects more than one individual (depending on how one defines ‘individual’). If it were an individual choice, we might still allow slavery.

  4. The “compelling state interest,” is the clause to make sure that men can’t get out of their responsibilities, i.e. child support, the same way that women can get out of motherhood via abortion or safe haven laws. The convoluted language stems from an attempt to appear non gender specific while in reality primarily aiming to benefit women. It will be interesting to see if the indentured servitude amendment ends up negating the state’s compelling interest in holding men accountable and making them pay both child support & alimony. The clear language there leaves no doubt.

  5. The enshrining of the right to kill the unborn at any stage of pregnancy is the State of Vermont putting the icing on it’s virtue-signaled shame for the eugenics policies it once promoted by pushing it into the realm of individual choice. Article 22 IS THE NEW EUGENICS PROGRAM. ( I am pro-choice but this proposal goes way overboard)

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