This commentary is by Matthew Strong, executive director of Vermonters for Good Government.
Proposal 5 (AKA Article 22) is being sold to women in Vermont as a women’s rights bill to protect Roe v. Wade in our state constitution. This is false advertising, and a “bait and switch.” Read the language of Proposal 5 and you will see clearly that it mentions neither women, nor abortion, nor Roe. It says:
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 vague, confusing, and fraught with legal problems, both intended and unintended.
For one thing, Proposal 5 is built on a contradiction: “personal reproductive autonomy.” The definition of autonomy is “having the freedom to govern oneself or control your own affairs.” But, scientifically speaking, reproduction takes two people. Both parties to creating a child can’t each have complete autonomy over the decision whether to bring an unborn child to term. This is a legal nightmare waiting to happen, especially for women.
Let’s say the mother of an unborn child wishes to have an abortion, but the father wants the child to be born. Who has the right to “personal reproductive autonomy,” the mother or the father? Do grandparents have any rights under Proposal 5 that the courts must consider? Believe it or not, it’s legally unclear. The woman in this scenario could be placed in a position where she would have to hire and pay a lawyer and go before a judge.
As we heard in House Health and Human Resources public testimony, even the chair of the committee admitted this would be the reality. When an ACLU spokesperson was asked whose rights would prevail, and the spokesperson didn’t know, committee Chair Ann Pugh stepped in and said, “My understanding is that when rights are in conflict, we go to court, and that is the role of the courts to decide, or a judge.” Watch the exchange yourself here.
Here’s another potential curveball should federal law ever establish a definition of fetal personhood (there is a bill, H.R. 6099): the unborn child could then have a right to personal reproductive autonomy under Proposal 5 that the courts would have to consider, even in cases where the life or health of the mother is at stake. Being aborted would certainly violate one’s right to reproduce!
I don’t know if the authors of Proposal 5 thought through these unintended consequences. But if Vermont women want a constitutional amendment that actually protects their personal right to seek an abortion without interference or the need for permission from other parties, vote NO on Proposal 5 and start over.