Opinion: Why Article 22 should be defeated

This commentary is by Tom Koch, of Barre Town. He represented the town in the Vermont House of Representatives for 22 years.

Here is the full text of Article 22, which is on the ballots that are about to be mailed to every voter in Vermont and would add Section 2, Article 22 to the Vermont Constitution:

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.

Article 22 sounds harmless and will probably pass on November 8.

But it shouldn’t. Why not?

First, it is completely unnecessary. For the last 50 years, since the case of Roe v. Wade was decided, the Vermont legislature—and I think it is safe to say, a substantial majority of Vermont’s citizens, myself included—support abortion to some degree, usually with some restrictions. Two years ago, the legislature passed the most sweeping endorsement of abortion rights in the nation.  Our law now legalizes late term abortions—including, in extreme cases, the killing of a perfectly healthy baby ready for birth after a full term pregnancy. Our laws also endorse giving an abortion to a young girl—12 years old, perhaps—without ever having her parents know about it.  I would venture to predict that none of that is about to change in the foreseeable future. A strong majority of Democrats, and a significant number of Republicans, support abortion, and no constitutional amendment is needed to prevent the current law from being amended.

Second, nobody — and I mean nobody — can tell you what this proposed amendment really means. The term “personal reproductive autonomy” is not defined anywhere in Vermont or American jurisprudence. It is a term invented for this proposed amendment, but even the sponsors of the amendment admit that they do not know what the term means. When asked about the meaning, their answer was, “The courts will have to decide.” Well, when I was a legislator, I thought part of my job was to make sure that the legislative intent was perfectly clear in the written words that the legislature passed, and if the wording of a bill was vague, I voted against it. Putting it bluntly, it is absolutely irresponsible to pass legislation if you don’t know what it means.

Third, note the reference to “an individual’s right to personal reproductive autonomy.” The proposal doesn’t say “a woman’s” right, but rather “an individual’s” right. If nothing else is clear in this proposal, it is that it would recognize a right that extends beyond women. So—and the courts will have to decide this as well—does the proposed amendment give the father of a fetus some rights that men have never had before? Ever since Roe v. Wade, people have spoken about “a woman’s right to do what she wants with her body,” and that the matter of an abortion is “between a woman and her physician.” Does this amendment now change that? Suppose a woman wants to carry her baby to term, but the father wants her to have an abortion; does a court now get to decide the baby’s fate?

Fourth, the advocates for this amendment will tell you that its purpose is to protect a woman’s right to an abortion, in view of the recent United States Supreme Court decision overruling Roe v. Wade. But if that is the case, where is the word “abortion” in this amendment? It’s simply not there, and it would have been very easy to put it there, and when key words are deliberately omitted, I always wonder what else is going on! Human cloning, perhaps? Genetic engineering such as we have never even imagined? I don’t know, but the possibilities are myriad.

Fifth, this proposal goes far beyond Roe v. Wade. While some proponents will try to tell you that all the proposal does is write Roe into our state Constitution, now that the United States Supreme Court has overruled Roe, that is clearly not the case. Roe v. Wade never protected a woman’s right to have a late term abortion, and it never forbade parental notification when a child (and I mean child, not woman) was seeking an abortion, so long as there was a judicial by-pass if the child had legitimate reasons why her parents should not be notified. No, this proposed amendment to Vermont’s Constitution goes far beyond Roe v. Wade. How far, and in what direction or directions, we will know only if we take the risk and pass this amendment.

As I said at the beginning of this article, Article 22 probably will pass. But it should not, and I hope I have sufficiently made clear some of the reasons why it should be defeated.

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9 thoughts on “Opinion: Why Article 22 should be defeated

  1. “…it would have been very easy to put it there, and when key words are deliberately omitted, I always wonder what else is going on! Human cloning, perhaps? Genetic engineering such as we have never even imagined? I don’t know, but the possibilities are myriad.”

    The reason it says “reproductive autonomy” is so that the state can promote sterilization of gender-nonconforming children.

  2. 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.

    Hmm, not be infringed? I think I read that somewhere before. What posers and frauds. Let me get this straight, the same politicians who want no infringement on abortion rights which kills thousands of unborn children a year want to take away our gun rights because too many people are being killed.

    “Political language is designed to make lies sound truthful, murder respectable and give an appearance of solidarity to pure wind”. George Orwell

  3. No thanks …

    You and the likes of Joe benning
    Are happy to sell us out

    Write in Gregory Thayer
    For lt governor….

  4. Tom Koch’s 5 objections to Article 22 are compelling. Sadly, I also agree with him that it is likely to pass and become a constitutional amendment. As a community we face a choice between citizens’ unlimited bodily autonomy vs saving children lives. Article 22 settles it for us…enshrine choice and forfeit children. In our history we faced a similar choice about property rights including slaves as property. We counted ourselves noble when we chose to limit property rights…slaves shouldn’t be property. It look like we’ll be forgoing nobility this time…no limitation on autonomy rights. We’ll go with dead children? I’d ask that we take Mr. Koch’s vision to heart and reconsider.

  5. If this insane amendment is passed, then get out the popcorn and settle in for a show.
    “personal reproductive autonomy” which we have to take literally since there is no widely accepted definition clearly will apply to both sexes and all the imaginary genders in between. This will eventually generate court cases where non-women will sue for being cut out of the process. The courts will have no choice but to recognize their individual rights.

    Then we have another non-defined phrase in “compelling state interest” which in itself will generate more lawsuits. After all, the termination of a life at birth is commonly known as “murder”. If the state professes to believe otherwise, then it will have to defend why in a court. That should be fun to watch.

  6. If there is a medical or legal ” Incest or rape ” then abortion should be allowed without
    any form of punishment or stigma !!

    The woke crowd and their ” My Body ” BS is just that pure & simple, apparently they
    don’t understand that their ” mind ” is part of ” My Body ” and maybe they should use
    it before engaging in sexual activities, in this day with all contraceptives on the market
    and you become pregnant, you’re an Idiot, it appears the woke crowd is full of them and
    then you think it’s Ok to kill an unborn baby when you’ve had months of carrying your
    offspring, because you couldn’t control your woo-woo………… how pathetic.

    All real Vermonters, not the woke transplants, should vote “No” on article 22, and if
    your representative votes yes, make sure they are voted out ASAP, save Vermont and
    all future Vermonters !!

  7. Re: “I think it is safe to say, a substantial majority of Vermont’s citizens, myself included—support abortion to some degree, usually with some restrictions.”

    This point is a continued irresponsible equivocation. To “support abortion to some degree” means what? To what degree?

    Answer: … the degree to which the State determines is a ‘compelling State interest’ – whatever that turns out to be.

    • The “compelling state interest” language is a direction to the court to use the “strict scrutiny” standard when evaluating whether any government action that “denies” or “infringes” on so-called “reproductive liberty” is constitutional. It is intended to prevent government regulation, not allow it. The courts, not the legislature, will decide what it means and what meets that standard.

      • Re: It (a ‘compelling State interest’ and the ‘strict scrutiny’ test) is intended to prevent government regulation, not allow it.”

        Not so. While these legal principles do, indeed, place consideration in the courts, they do not prevent government regulation, or allow it. These legal principles simply place the subject of constitutionality in the hands of the courts. And the courts can rule either way, to prevent a regulation, to allow a regulation, or something in between.

        https://mtsu.edu/first-amendment/article/31/compelling-state-interest

        The point is that Article 22 does not provide a ‘Right to Personal Reproductive Autonomy’. First, the Article doesn’t define what Personal Reproductive Autonomy is. Second, under the ‘strict scrutiny test’, constitutionality is the court’s determination, not a personal decision. Third, because there is no right to personal reproductive autonomy enumerated in the U.S. or in the Vermont Constitutions, the courts will have to ‘wing it’. And fourth, the courts decisions on constitutional protections are often overturned.

        First, consider Roe v. Wade. Then consider the 1857 Dred Scott decision, in which the SCOTUS ruled that African Americans were not and could never enjoy the constitutional protections provided to citizens of the United States. The Dred Scott decision was overturned by the 13th Amendment in 1865 and strengthened in 1868 with the 14th Amendment.

        The decision with which we are faced today is to determine whose personal reproductive autonomy we are protecting. The mother only? What about the unborn child? If a pregnant woman is murdered, it’s considered a double homicide. Why does the unborn child lose its rights when it is the mother deciding its fate?

        Article 22 does nothing to clarify these points. It only kicks the can to the courts. It does nothing to ensure a ‘Right to Personal Reproductive Autonomy’. Article 22 is a deception.

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