This commentary is by state Rep. Anne Donahue, R-Northfield. She is vice chair of the House Health Care Committee and a spokesperson for Vermonters for Good Government.
The lead sponsor of the Prop 5/Article 22 reproductive liberty amendment in the Vermont House, Rep. Ann Pugh, said in a recent radio interview that the state constitution “is where we state our most fundamental beliefs and values.”
She is precisely right.
That’s why Article 22 is not about what happens in Vermont today — whether there are, or are not, elective third trimester abortions occurring.
The fundamental question is, do our Vermont beliefs and values support an unlimited right to a third trimester abortion, up until the time of birth, and locking that right into our constitution?
Do our values and beliefs support turning over to Vermont’s courts unlimited authority for future decisions about the definition of “reproductive autonomy” — about what it does or does not cover?
Those are core values included in Article 22.
There is misinformation being perpetuated that Article 22 is intended to protect the standards of Roe v. Wade in Vermont. The fact that Roe has been overturned is being used to create fear that abortion rights under Roe v. Wade are in jeopardy in Vermont unless we vote for this constitutional amendment.
But the Vermont Supreme Court ruled in 1972 that the existing constitution prohibited broad abortion restrictions, and Vermont state law since 2019 protects access to all abortions in Vermont.
Furthermore, new federal law would supersede Vermont’s constitution, regardless.
Roe itself flatly rejected the argument that “the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”
The panic across the nation about the Dobbs decision is about access to first trimester abortions, not late term ones.
Article 22 would go radically beyond Roe v. Wade by creating a constitutional right in Vermont to abort a viable, unborn child at whatever time, in whatever way, and for whatever reason the person carrying it chooses. In the future, if UVMMC decided to end the use of an ethics review panel for third term abortions, or new and less ethical providers came to Vermont to expand abortion access — as they surely would — the state could do nothing about it.
There are some 12,000 third trimester abortions across the country now, and according to the Guttmacher Institute, the majority are for social reasons, not medical ones.
Restrictions on third trimester abortion is consistent with broad, worldwide consensus. Almost every nation — including all European countries — limits abortion after 12 weeks and places major restrictions after 24 weeks.
Even California, often seen as the most liberal state on abortion, bans elective abortion after viability, which approximates the third trimester.
There has also been huge consternation that a 9-person Supreme Court has redefined reproductive rights.
But whenever constitutional language is ambiguous, as Article 22 is, it is the courts which must decide upon the meaning.
Article 22 never references abortion. It guarantees reproductive liberty to all individuals: men, women, and children.
Thus, under the vague wording of Article 22, Vermont’s 5-person Supreme Court would be the decision-maker over what “reproductive autonomy” means for all individuals in the future: when a man’s right to control his reproductive autonomy supersedes a woman’s; when a child could decide on their own to have a hysterectomy; whether the state could ever enact provider conscience protections; or whether new developments such as in experimental genetic engineering is included.
Vermonters, through their legislature, would be barred from intervening in any such decisions. That is the choice that would be made by voting for Article 22.
Are these all values that we believe in and want to enshrine in our constitution?
Placing definitions or future interpretations solely in the hands of five judges?
Barring any state regulation of abortion after viability — right up to the moment of birth?
For most Vermonters, probably not.