By Rob Roper
When the Vermont House of Representatives returns in January, one of the first orders of business they will take up is a constitutional amendment called Proposal 5 (aka Article 22). Proposal 5 is being sold as a statewide protection for women’s rights guaranteed under Roe v. Wade. This isn’t an accurate portrayal of what Proposal 5 would do. In fact, Proposal 5 is a legal mess that no one on either side of the abortion debate should be OK with.
The Ethan Allen Institute has no position on abortion either way, but we do have an interest in our Constitution, and Proposal 5 is a word salad so vague it could open the door to a number of truly horrid unintended consequences. How weird is it? It supposedly protects women’s rights and abortion rights, but it doesn’t mention anywhere in its language the words “woman” or “abortion.”
Here is what Proposal 5 says in its entirety: 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.
What does that mean? Here’s the problem: nobody knows. “Personal reproductive autonomy” as something that “shall not be denied or infringed” is not a clear concept, which is why everybody with a shred of common sense and imagination should be adamantly opposed to this becoming the law of our land.
If you’re pro-life, or even pro-choice in the Roe v. Wade sense of the term (a guaranteed right to an abortion only through the first trimester of pregnancy, after which some reasonable regulations of abortions make sense, and no guarantee of a late-term abortion in the third trimester) you should oppose Proposal 5 because it opens the door for unregulated abortion on demand throughout all nine months of pregnancy up to the day of birth. Even the most ardent proponents of Proposal 5 squeamishly admit that this is “technically true,” which is just a slightly longer way of getting at the fact that it’s true.
But it gets worse. Proposal 5 could conceivably make unconstitutional age of consent laws, opening the door to legal pedophilia in the Green Mountain State. Does a 12-year-old girl have a constitutional right to her personal reproductive autonomy? Can she pursue that right by sexually engaging with a 45-year-old man? Or vice versa? There is a very strong argument that Proposal 5 says “yes,” and the state shall not deny or infringe that right. This goes way beyond Roe v. Wade.
Even if you are the most ardent supporter of a woman’s right to choose an abortion, Proposal 5 is not for you either. Remember to read the fine print here: Proposal 5 does not specifically guarantee a woman’s right to choose an abortion; it mentions neither women nor abortion. It guarantees to everyone, people of every gender, “reproductive autonomy” — including men. Therefore, Proposal 5 arguably gives the father of an unborn child an equal and potentially overriding constitutional say over whether or not a baby is carried to term. The right to reproduce, after all, is the specific language in the law, not the right to an abortion.
If the father of an unborn child, under Proposal 5, sues the mother of his child demanding she carry the baby to term under the premise that her having an abortion would violate his constitutionally protected right to reproductive autonomy, where would a court go with that? Who knows? Let’s ask Supreme Court Justice Amy Coney Barrett!
There are many more scenarios like this one that you can imagine a creative lawyer coming up with on both sides of the pro-life/pro-choice debate. Word counts prohibit my getting into more here, but spend a few minutes thinking about this on your own and I’ll bet you can come up with half a dozen over breakfast.
The authors of Proposal 5 bent over backwards to placate the most extreme elements of today’s politically correct gender special interests, but in doing so they crafted a constitutional amendment that is weirdly unclear and dangerously unspecific about what it is supposed to do.
If Vermonters want a constitutional amendment that protects a woman’s right to choose an abortion under the principles of Roe v. Wade, then let’s have an amendment that actually says that in clear and unambiguous terms. Proposal 5 fails to do this in the most spectacular fashion.
Rob Roper is president of the Ethan Allen Institute. He lives in Stowe.