VFGG: Vermont legal experts expose misinformation coming from supporters of Proposal 5

For Immediate Release

Matthew Strong
Executive Director, Vermonters For Good Government
(802) 585-4364

In order to counter misinformation by supporters of Proposal 5/Article 22, Vermonters for Good Government created a website page dedicated to published legal opinions and observations by Vermont attorneys who hold Pro-Choice, Pro-Life, pro-Proposal 5, and anti-Proposal 5 positions. The page includes analysis by:

· Christina Nolan, former U.S. Attorney for Vermont “Roe v Wade was about abortion in the first trimester. This constitutional amendment is about something entirely different. It talks about ‘reproductive autonomy.’ That’s a different right. Nobody knows exactly what it is.”

· James McFaul, an attorney from Barnet, Vermont, who has practiced civil law for 26 years and is admitted to the federal and state courts in Vermont, New Hampshire, Maryland, and the United States Supreme Court. “’Personal reproductive autonomy’ includes, first and foremost, the right to have an abortion, and there is no language limiting when that abortion may be obtained. It does not say ‘up to 22 weeks,’ or “prior to fetal viability.’ The right is granted, and it is unlimited.”

· Norman Smith, an attorney practicing law in Essex Junction, Vermont, who clerked for Chief Justice Albert W. Barney, Jr.in 1980-1981 and has argued several cases before the Vermont Supreme Court. “If the U.S. Supreme Court were to overturn Roe v. Wade, that decision would leave to the states the adoption of laws and regulations regarding abortion. In 2019, the Vermont Legislature passed Act 47, which guarantees women’s unlimited access to abortion…”

· Rep. Anne Donahue, a graduate of Georgetown University Law Center, and a Vermont state legislator since 2003. She is currently is vice-chair of the Health Care Committee. “The fundamental question is: do our Vermont beliefs and values support an unlimited right to a third-trimester abortion, up until the time of birth, and locking that right into our constitution? Do our values and beliefs support turning over to Vermont’s courts unlimited authority for future decisions about the definition of “reproductive autonomy” — about what it does or does not cover? Those are core values included in the amendment.”

· Eleanor Spottswood, Vermont Solicitor General, VT Attorney General’s Office. “The extent that that statute [a possible future law declaring that a fetus is a person at 24 weeks gestation when it could live outside the womb] would interfere with a woman’s right to reproductive autonomy, or a pregnant person’s right to reproductive autonomy, that portion of the bill would not be upheld under Prop 5.”

· Jared Carter, Assistant Professor of Law, Vermont Law School, “I think [an uptick in abortion circumvention tourism] is likely here in Vermont, particularly because New Hampshire, a bordering state, recently passed restrictions on abortion after 24 weeks.”

Matthew Strong, Executive Director of Vermonters for Good Government, explained, “Supporters of Proposal 5/Article 22 want to portray this as a fight between Pro-Choice vs Pro-Life Vermonters. It is not. Proposal 5/Article 22 is simply not good law from either side’s perspective. It is vaguely written, open to radical judicial interpretation, doesn’t necessarily do what its supporters promise while simultaneously opening the door to outcomes nobody intended or wants. It’s not good government. And it is a totally unnecessary risk as abortion rights are already completely and securely protected under Act 47, which isn’t going anywhere any time soon, unless Proposal 5 passes t which point Act 47 would immediately be subject to constitutional challenge.”

Some of the misinformation being spread by supporters of Proposal 5/Article 22 includes:

“Abortion rights are under attack!” And, “We need Proposal 5 to secure abortion rights.” In Vermont, this is false. The Dobbs decision returned abortion policy to the purview of the states. Vermont passed Act 47 in 2019 to secure Vermonters’ access to abortion, contraception, etc. and that law isn’t going anywhere. According to the Vermont Attorney General’s website, “there are no legal restrictions in Vermont.” https://ago.vermont.gov/blog/2022/06/30/know-your-reproductive-rights-in-vermont/

“Proposal 5 just confirms the status quo.” This is false. The status quo under Act 47 specifically ensures Vermonter’s rights to access abortion, but Proposal 5 creates a new, largely undefined right to personal reproductive autonomy — which applies equally to men, women, and children – that goes radically beyond the current status quo, potentially to the detriment of pro-choice women when men’s new right to reproductive autonomy conflicts with that of the woman.

“Late term abortions occur only in extreme cases where the health of the mother or unborn child is at stake.” This is false. Elective late term abortions do occur, and, as Vermont Law School professor and Proposal 5 supporter Jared Carter admits, Vermont will be a late-term abortion tourism destination for such procedures if the amendment passes.

“Under Proposal 5, the only people who will be making decisions about abortion are the mother (pregnant person) and the doctor, no one else.” And “Proposal 5 gets politicians out of the process.” This is false. Under Proposal 5 doctors have no legal standing to make decisions regarding a woman’s choice to have an abortion or not. It is an “individual” right. The conflict between a woman’s and a man’s right to “personal reproductive autonomy” regarding the same unborn child means courts will decide the fate of the unborn child, not the mother/doctor. And the “compelling state interest clause in Proposal 5 means politicians are ultimately not removed from the process as promised by its supporters.

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2 thoughts on “VFGG: Vermont legal experts expose misinformation coming from supporters of Proposal 5

  1. Vermont’s Constitutional Double Whammy:

    Prop 5/Article 22 is so singular in its target and infinitely broad in scope, it may be a moot point, even if passed, because there is no reference to ‘severability’ (a clause in a given law providing that any portion of the law deemed to be unenforceable does not affect the validity of the rest of the law’s provisions).

    Does, for example, Prop 5/Article 22 give authority for any individual, regardless of age, to the personal reproductive autonomy central to the liberty and dignity to determine one’s own life course? Is gender reassignment a reproductive liberty?

    Vermont’s statutes are loaded with parental rights laws, especially legislation involving the termination of those rights. Essentially, I suspect, with the passage of Prop 5/Article 22, we are going to see a plethora of court cases in this regard. It’s no wonder, then, that the VT ACLU supports Prop 5/Article 22. Its members, and many attorneys for that matter, will surely be busy in the days to come.

  2. I got a flyer with former speaker of the house and a GOP candidate, saying complete and utter lies about the bill……

    Seems both parties are playing the same uniparty game. Seems to have spent a TON of money to distribute too….

    Vermont is so full of lies, we haven’t an idea what a real debate is, nor how to find the truth…

    Sad, sad, sad.

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