Campaign Countdown: Article 22 foes argue measure guarantees unregulated abortion

BURLINGTON, Vt. (WCAX) - Upwards of 75% of Vermonters plan to vote ‘yes’ on the Reproductive Liberty Amendment -- or Article 22 -- on Tuesday, according to a recent WCAX poll. Vermonters for Good Government is an anti-abortion group fiercely opposing Article 22. Reporter Christina Guessferd spoke to the group’s spokesperson, Rep. Anne Donahue, R-Northfield.

The group’s main message to voters is that if you believe the state should prohibit abortion on a healthy, viable, full-term fetus -- vote ‘no’ on Article 22.

Reporter Christina Guessferd: Proponents of Prop 5 say that’s just not logical -- a human being would not do that because what’s the point in that? Why go eight months into a pregnancy and then terminate it?

Rep. Anne Donahue: I don’t disagree with the unlikelihood of somebody at eight or eight-and-a-half months.

Reporter Christina Guessferd: Why paint that picture in people’s minds, in voters’ minds, if that’s not something you think is likely?

Rep. Anne Donahue: Well, I think it’s a horrible image. And I think it legally is permissible. I think that’s the point that’s being made. We are passing a constitutional amendment that legally gives a right to do that. And if they might not seek it in the hours before birth, they certainly do and we know that happens, seek it during the time period it is a viable infant.

The Vermont Department of Health’s latest vital statistics show only 1% of abortions in 2020 were performed after 21 weeks of gestation. Donahue concedes the number may be low now because UVM Medical Center -- which performs most of the state’s abortions -- has implemented a policy requiring an ethics committee to review and approve cases at or over 22 weeks. Though the medical center contends its policy will not change, Donahue believes Article 22 would override that rule, opening the door for litigation against the hospital should it refuse to perform an abortion.

“Once there’s a constitutional right to access at any time, the policy might be found to be unconstitutional because it would be a barrier to a woman or a person who’s pregnant exercising their right,” Donahue said.

Channel 3 News asked Donahue for evidence that Article 22 would permit, “Unstoppable late-term abortions that terminate a baby days before birth for any reason or no reason at all,” as cited in Vermonters for Good Government’s campaign. The cornerstone of her argument -- an exchange between Vermont Solicitor General Ella Spottswood and state Rep. Carl Rosenquist, R-Georgia, at a House committee meeting in January in which Rosenquist asks if Article 22 would automatically make anti-abortion laws null and void, referring to a bill he introduced last session.

Rep. Carl Rosenquist: One in particular would grant personhood to a fetus at 24 weeks or greater gestation. If a person is a person, I assume they could not be terminated.

Vermont Solicitor General Ella Spottswood: To 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.

We asked the Vermont Attorney General’s Office whether Spottswood’s testimony supports Vermonters for Good Governments’ position that Article 22, “Guarantees unregulated late-term abortions through all nine months of pregnancy.” The response was, “No.”

Only minutes earlier in her testimony before the committee, Spottswood explains. She highlights the Article 22 clause “...justified by a compelling state interest achieved by the least restrictive means.”

“The government can still infringe on fundamental rights if it justifies its actions properly. It’s a high bar, but it’s not impassable,” she said.

In other words, the Vermont Legislature can pass laws in the future restricting access to some abortions under Article 22. But right now, there are no laws like that on the books. If the measure is challenged, the Vermont Supreme Court would then evaluate if the state has a compelling interest to enforce the regulation. Donahue says that process is still problematic.

“We’re going to give five judges in Vermont huge public policy decisions about what these rights should extend to in the future,” Donahue said. “You’re talking about the kind of policy discussions that should have happened before passing this kind of language instead of afterwards.”

The words in Article 22, Donahue stresses, are inadequate. She says by choosing to exclude an exemption -- limiting abortions later in pregnancy for non-medical reasons -- the legislature is expressing it has no intention of regulating abortions in any way, ever. “I think it would take a significant change in voter-determined representation of who’s elected before that would happen,” she said.

In comparison, Roe v. Wade explicitly gave states the discretion to regulate third trimester abortions.

It’s true, Vermont hasn’t regulated abortion in the 50 years since Roe and went one step further in 2019 with Act 47. However the original author and sponsor of Proposal 5/Article 22, longtime Vermont Senator Ginny Lyons, D-Chittenden County, says that policy hasn’t been modified in 50 years because there’s been no need.

“As a state, for over 50 years, we’ve enjoyed this freedom and liberty, where people make decisions about their families, about their planning, about abortion. And we wanted to put in place something that would constitutionally ensure that those 50 years are extended,” Lyons said.

Lyons is confident the medical community will continue to police itself, as it has for decades. Those guiding ethical principles, she says, would prohibit the harm Vermonters for Good Government is hypothesizing. For example, Rep. Donahue alleges if Article 22 passes, it is probable a provider will open a practice in Vermont and perform unethical procedures without facing any legal ramifications.

“I would think that if a medical practitioner did that, the first step that would be taken would be through the Medical Practice Board and sanctioning of that individual with withdrawal of license,” Lyons said. “People don’t just willy-nilly open an office and begin this kind of work. They work in clinics, they work with colleagues, and they are highly professional.”

Lyons says when crafting the bipartisan bill in collaboration with republican senators, Proposal 5′s language ironically concerned those who favor abortion because other states have invoked the “compelling state interest” clause to restrict the right. And she emphasizes, if a scenario arises demonstrating a need to regulate abortion, the legislature can robustly debate on whether to pass a law.

Vermonters for Good Government also claims, “With an unlimited right to late-term abortion comes the elimination of any conscience rights for doctors and nurses who don’t wish to perform procedures that violate their beliefs.” The group says medical professionals would be forced to participate, or lose their job.

Spottswood’s interpretation contradicts this claim. She writes in her testimony Article 22 would not, “Require private health care practitioners to provide any particular service, including abortion,” or, “Restrict the state from regulating health care providers.” Spottswood also writes Article 22, “Does not change any family laws regarding child support.” Conscience rights are currently protected under federal law. Donahue worries, “That could be changed at any time.”

Constitutional expert and Vermont Law and Graduate School professor Peter Teachout attests it’s unlikely the federal laws will be overturned, but if they are, the Vermont legislature would still have the authority to establish its own protections under Article 22.

“It’s very uncharacteristic of our government and our society to force anyone to violate deeply held religious convictions. So, that’s an interest that may well seem to be sufficiently compelling to say there are some limits about the extent to which you can walk into any provider you want and say, ‘You’ve got to perform an abortion,’” Teachout said. “There ought to be some limits, and the legislature can provide them if it wants to, but right now those restrictions are provided by federal law.”

Teachout notes it is impossible to predict every potential future predicament. “We have to trust that courts and legislatures will apply those constitutional provisions in a responsible way,” he said. “The problem is, you’re just running out hypotheticals that are highly unlikely ever to happen, but if they were to happen, Article 22 gives the state legislature and the Vermont Supreme Court an opportunity to say, ‘Yes, under these extreme circumstances, access to abortion can be limited.’ Article 22 authorizes, anticipates, contemplates that scenario.”

And Teachout explains the implications of those reasonable restrictions go far beyond abortion, as the Reproductive Liberty Amendment encompasses a variety of rights. “For example, the legislature might pass a law saying nobody in this state should be allowed to clone.”

If Article 22 fails on Tuesday, current reproductive rights remain the same. But if it passes, and the federal government implements an abortion ban, that ban will supersede Article 22 and apply to Vermont.

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