Campaign Countdown: Inside Prop 5, Vermont’s Reproductive Liberty Amendment

BURLINGTON, Vt. (WCAX) - Proposal 5, a measure that would enshrine the right to abortion in the Vermont Constitution, is on the November ballot.

The measure, which has been in the works for several years, received final approval in the Legislature this year. It would add a personal reproductive liberty amendment -- titled article 22 -- to the Vermont Constitution. Article 22 does not mention abortion or women, and experts say that’s by design. Constitutional provisions by their very nature are framed in broader terms, leaving courts to set a series of precedents that determine how the provision is applied to situations in the future. So, the legal possibilities under Article 22, like any constitutional amendment, are hypothetically, endless.

Experts suggest that two main factors will shape the scope of Article 22 -- the Vermont Supreme Court’s interpretations of the amendment and health care providers’ medical and ethical standards.

The proposed 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.” In other words, decisions about whether and when to reproduce are in the hands of the person reproducing and the state cannot interfere unless the government has an incredibly good reason to intervene and does so in a way that’s minimally disruptive.

The first few words may seem to indicate an unlimited, unstoppable right to pregnancy, sterilization, birth control, and abortion. But Ellen Anderson, a political science professor at the University of Vermont, says the second part of the sentence offers qualifications. “The last part of the sentence says ‘unless justified by a compelling state interest achieved by the least restrictive means,’” she said. Anderson says a slew of court cases have built the foundation of Americans’ fundamental rights and courts have also established exceptions in which the government can restrict autonomy.

For example, shouting ‘fire’ in a crowded theatre is not protected under the U.S. Constitution’s First Amendment right to free speech. Similarly, legal precedent supports a pregnant person doesn’t automatically have the right to terminate a healthy, near-term fetus days before birth.

“So, now we have two theoretically independent human beings to consider, and under those circumstances, the state has an interest in preserving life but doesn’t get to preserve the potential life of the fetus against the actual life of the person who’s pregnant,” Anderson said.

Just as U.S. courts have interpreted the scope of fundamental rights, Andersen says the Vermont Supreme Court would ultimately determine the parameters of Article 22′s compelling state interest through litigation. Just as the U.S. Supreme Court decided it was in a state’s compelling interest to regulate abortion “at approximately the end of the first trimester” of pregnancy, Vermont courts could find restricting minors’ access to life-altering procedures like abortion or sterilization is a compelling state interest. Plus, the Vermont Legislature could craft new legislation imposing boundaries on reproductive liberties as long as they don’t conflict with Article 22 and are justified by a compelling state interest.

Another important legal layer that would limit some abortions under Article 22 is that while medical professionals are obligated to abide by local, state, and federal law, they reserve the discretion to decline a patient’s request for a procedure unless the patient’s life is in danger and especially if the procedure is unsafe. That’s because federal conscience and anti-discrimination laws protect health care entities.

“It is not a medical free-for-all here. We still have values and morals that guide the care we provide,” said Dr. Lauren MacAfee, an obstetrician/gynecologist at the UVM Medical Center:

The medical center upholds an internal policy permitting doctors to perform abortions for any reason up to 21 weeks and 6 days. At 22 weeks, an ethics committee must review and approve the abortion. MacAfee says many practices enforce similar rules.

Reporter Christina Guessferd: Do you anticipate that changing?

Dr. Lauren MacAfee: Not in any way, shape, or form, no.

According to the Vermont Department of Health’s latest vital statistics. There were 1,227 abortions performed in Vermont in 2020. About 92% of them were completed during the first trimester -- less than or equal to 12 weeks gestation. About 78% were for pregnancies less than nine-weeks duration. And 1% -- or 14 -- of those 1,227 abortions happened after 21 weeks of gestation. A fetus is considered full-term between 39 and 40 weeks.

“We’re talking about a very small subset of patients that are seeking care later in pregnancy,” MacAfee said. “We don’t just offer on-demand at eight, nine months. That’s just something that doesn’t happen and isn’t something that women are asking of us, even... I don’t have women that come to me at 39 weeks near term to say, ‘Yeah, I’m just done. I’d like to have an abortion now.’”

MacAfee says most abortions that occur after 21 weeks happen when the person either didn’t know they were pregnant, didn’t have access to abortion care, or in most cases, discovered a medical abnormality, birth defect, or life-threatening genetic mutation -- often at the routine 20-week ultrasound’s anatomy check.

“The passage of Prop 5, or the Reproductive Liberty Amendment, will change nothing about my medical practice and will maintain what I would say is the status quo right now of allowing me to have thoughtful, complex decisions with my patients free from any interference from politicians,” MacAfee said.

Regardless of whether Prop 5 passes, any congressional legislation would override state laws under the U.S. Constitution’s Supremacy Clause. Vermont could litigate against the ban, arguing that Congress exceeded its authority, but Andersen doesn’t think the current conservative majority on the U.S. Supreme Court would buy that claim.

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