Strong: Can Prop 5 grant autonomous right over something decided by two people?

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.

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Which parent will have “autonomy” under Proposal 5?

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.

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5 thoughts on “Strong: Can Prop 5 grant autonomous right over something decided by two people?

  1. Almost 40 years ago I pledged to raise to adulthood every unborn innocent I wanted to rescue. As I found out it would cost in today’s dollars around $300,000 per child in well child visits, medications, food, clothing, shelter, child care and education, I found out that I could only afford to rescue one– which took me eighteen years on my own. I didn’t want the child to turn out like Eileen Wuoronen or Ted Bundy, so i couldn’t trust that the biological host would do the job by herself.

    Anybody else here willing to make that commitment?

  2. “shall not be denied or infringed unless justified by a compelling State interest”

    Maybe I’m wrong but I read this and wonder what is a compelling State interest?

    If the State believes that it is too populated would that not be a compelling State interest to abort your baby?

    It’s of my opinion that the State should never be involved in your Private affairs and certainly your reproductive autonomy is a Private affair pun intended.

    Lastly as far as I’m concerned most of the time this State does not understand the word “infringed”.

    • You bring up a good point Brian, and we will be working on educational materials on this issue, because it is very easy to misunderstand due to lack of clarity from the legislature.

      “Compelling State Interest,” in the context of Prop 5, actually means the opposite of what you think it does, and it’s far worse.

      If passed in November, there will be NO regulations on ANYTHING that falls under the “personal reproductive autonomy” heading. And, to pass a law or regulation from that point on, the legislature will have to prove they have a “compelling state interest” to be able to pass a new law. This is the highest level of scrutiny used by the Supreme Court, to maximize Constitutional protections. This will be almost impossible to prove because of the way they have worded this amendment.

      To put it in another way, they are removing all regulation, and then closing the door behind themselves, permanently.

      https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/compelling-state-interest

  3. Abortion is Murder.. it really is.
    If we called it what it was- I have a feeling they’d be a whole lot less of it.. and that is why we don’t.

  4. OK, so the proponents think that preventing the murder of a healthy baby at birth is NOT a “compelling” State interest ? Wow !

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