John Klar: What does coming Roe decision mean for Vermont?

By John Klar

The U.S. Supreme Court’s rumored Dobbs decision would reverse Roe v. Wade and related cases, leaving it to individual states to regulate abortion at any stage of pregnancy. In the midst of a referendum in Vermont over Proposal 5 (which would constitutionally ensure a right to abortion up until delivery), this dramatic federal legal vacuum presents disturbing implications.

Roe premised the right to an abortion on what is called “Substantive Due Process,” a controversial evolution in U.S. Constitutional law that sought to shield traditional rights not specifically mentioned in the Constitution. The opinion currently being distributed as the forthcoming majority position of the Dobbs Court revisits Roe, proclaiming the right to an abortion does not fit that test:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. ….Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. (p. 15).

This draft appears to be legitimate, in which case the result will be to leave the regulation of abortions to state governance. Roe always was a sort of jurisprudential version of King Solomon’s famous baby-division: by dividing gestation into stages and wedging that analysis into federal law as a “right,” the Roe Court imposed a national uniformity that will be shattered overnight if Dobbs rules as anticipated. The Dobbs Court specifically condemns the Roe Court for overreaching, but the abortion landscape that lays ahead reveals what Roe sought to avoid.

Roe’s repeal will not change Vermont’s liberal abortion laws, though it will allow conservative states to ban abortion from conception. Indeed, pro-life forces in Vermont may be disheartened — at least Roe had recognized viability and fetal personhood, and the legitimate state interest in protecting those children. That glimmer of protection, which could well have been expanded in Dobbs using modern science, has now evaporated.

Vermont’s abortion dispute remains a moral one. The great horror of proposal 5 is not that it protects abortion procedures (which are already protected under clear laws), but that it seeks to protect later-term abortions that could include viable human babies. If proponents of Proposal 5 wished to assure Vermonters that was not the case, clear language could be incorporated — but the opposite is the case.

For years, Vermont pro-choice positions have been frighteningly severe in their near-reverence for that controversial “procedure,” so much so that repeated efforts to recognize fetal personhood in criminal law have been thwarted. This means that if a man brutally assaults a woman (domestic partner?) and causes her late-term child to perish, or a drugged driver destroys a fetus in an innocent victim’s womb, Vermont law provides absolutely no criminal penalty. This is hardly the balance toward which Roe strove, and it is the opposite side of the spectrum from those who would ban abortion from conception.

But now the game has changed overnight — if southern states ban all abortions outright, and neighboring states prohibit late-term terminations, Vermont will be a destination for a new kind of tourist.

A large majority of Vermonters oppose late-term abortions. Proposal 5 is deliberately broad, and also extends to protect minor children’s decisions to have abortions or obtain gender hormone change therapies without parental consent.

Without a clear and workable constitutional amendment for consideration by voters, Proposal 5 as drafted is extremist and suspect, and does not belong in the Vermont State Constitution … whatever the United States Supreme Court decides.

John Klar is an attorney and farmer residing in Brookfield.

Image courtesy of Public domain

6 thoughts on “John Klar: What does coming Roe decision mean for Vermont?

  1. The day the draft SCOTUS decision was “leaked” coincides with the release of the 2000 Mules documentary by Dinesh D’Souza. What a coincidence!!!

  2. Elections do have consecuences, and the current admistration needs a deversion
    for there inept actions and policies, so a leaked ruling or planned attack, never take
    your eye off the ball people …………..

    So just incase a the whining liberals think this ruling, if accurate, it will change nothing,
    and Vermont’s chop shop abortions clinics are still available … pathetic as that is from
    our spineless legislators and Governor.

    If a ” woman ” gets pregnant and that’s the only gender that can, that means she had
    intercourse and hopefully relized what could happen, but with all the constraceptivies
    available, before and after having sex, abortion really isn’t neccessary and government
    has no play in……..

    So if a pregnant woman waits do get an abortion, then the male that inpregnated her,
    needs to file a lawsuit for killing his unborn child, now that’s how the courts are suppose
    to work, justice for all,including the unborn child !!

    If you don’t want kids, keep your pants up, or do a Monica ………….fools,

  3. Sorry, but the state has absolutely zip for a stake in fetal personhood and viability. To have either of those, the state would have to be pregnant.

    The state cannot guard against the effects of alcohol, drug abuse or nicotine on the fetus. It is impossible to strap a pregnant woman to a hospital bed for nine months and ensure that she does not smoke, drink or otherwise overindulge. It is perhaps the only situation in which she has complete control.

    And even after birth, it costs about $360,000 per child to get them raised safely to a well-functioning adulthood. If a woman decides she can’t do that, is the state ready to provide the wherewithal? It would never adopt that policy. Forcing the woman to bear a child is to almost guarantee the child will lead a life crippled morally, ethically and behaviorally.

    Because they are so fixedly focused on abortion, the so-called “pro-lifers” in general can’t and won’t care about real children.

  4. “The idea that we’re going to make a judgment that is going to say that no one can make the judgment to choose to ABORT A CHILD, based on a decision by the Supreme Court, I think goes way overboard.”
    A direct quote from the President of the United States on Tuesday. Wait…did he just admit that a “fetus” is really a CHILD? Then “abortion” is definitely MURDER. See the link.

  5. Before jumping to any conclusions on who ‘leaked’ this pre-decision decision, consider this. Clearly, if true, this is monumental SCOTUS judgment. All of the justices would, rightfully, be girding their loins for the public reaction, for and against. What better way to take the heat off the justices, those for and those against, than to create a diversion of equally monumental standing. What’s more significant? The ruling? The leak? Or the convenience of the distraction?

    Don’t throw the baby out with the bathwater. The court system hasn’t lost anything. Certainly not legitimacy. It remains part of our constitutional triumvirate, Legislative-Executive-Judicial. ‘The System’ is just fine. It’s ‘we the people’ operating in it who are corrupt. And whose fault is that?

    Forgive my idiom-eeze. But don’t lose sight of the forest for the trees. No matter who is orchestrating this theater, consider the points being debated. On one side we have the open-ended abortion on demand at any time folks. On the other we have those who are certain abortion is always evil. I suspect many of us are somewhere in between.

    In our system of governance several constitutional aspects are coming into play. And they are too diverse and extensive to explain here. This is similar to the issue of slavery, ostensibly also a ‘state’s rights’ debate. And we all know how that was resolved.

    So don’t get all bent out of shape just yet. Let the system do its thing. At the very least, it will expose those who persistently use (and instigate) over-heated debate to feather their own political and economic nests, no matter on what side of the aisle they reside. In the final analysis, I’ll take someone who is honest and forthright, no matter our disagreements, before I give credence to a false prophet.

  6. It took the Democrats and Progressives in the US House and Senate about 10 seconds to politicalize and start fund raising off of the treacherous leaking of the Supreme Court draft opinion…….Accusing Republicans of all things bad going back to original sin?

    This leak is an assault on the US Supreme Court…….An act that equates to an assault on our Democracy and an insurrection……..When will Nancy Pelosi and Chuck Schumer call for an all out Congressional investigation to find the insurrectionist who leaked the draft opinion and bring that individual to justice?

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