Senators aim to remove abortion provider law from the books

Abortion has been legal in Vermont for four decades, but the state has a law on the books that makes it a crime for a doctor to perform an abortion and subject to jail sentence of 10 years.

The criminal penalties remain in Vermont statute even though the Vermont Supreme Court invalidated the law in 1972 in its decision in Beecham v. Leahy and Jeffords, and the 1973 U.S. Supreme Court decision in Roe v. Wade made abortion legal in the United States.

State senators hope to repeal the statute this session with the passage of S.317. The bill will likely be taken up on the Senate floor this week. Members of the Senate Judiciary Committee — Sens. Alice Nitka, Tim Ashe, Dick Sears, all Democrats, and Joe Benning, a Republican — voted 4-0 to support S.317. Sen. Jeannette White was absent.

Sen. Patrick Leahy, D-Vt., announced a $9.9 million Department of Homeland Security contract with Norwich University's Applied Research Institutes for cyber-war gaming software at a news conference in the University’s Sullivan Museum. Photo by John Herrick/VTDigger

Sen. Patrick Leahy, D-Vt. Photo by John Herrick/VTDigger

“It’s important to repeal this at a time when future rulings of the U.S. Supreme Court are really quite frankly up in the air. I would hate for Vermont to go back and repeal this at a future time,” Sears said.

Eric Fitzpatrick, a lawyer for Legislative Council, said the Legislature hasn’t attempted to repeal the statute until now.

The case that invalidated the state law, Beecham v. Leahy and Jeffords, involved Jackson Beecham, a doctor from St. Johnsbury, Jacqueline R., a welfare recipient who was seeking an abortion, and then Chittenden County State’s Attorney Patrick Leahy (now a U.S. senator) and the Vermont Attorney General James Jeffords (who also became a U.S. senator).

On the face of it, Leahy and Jeffords argued for the state and in its ruling, the Vermont Supreme Court took the side of the woman and her doctor and invalidated the state statute.

Leahy says the backstory behind the ruling is more complicated than that.

Abortions were against the law then, but Leahy told doctors at Fanny Allen Hospital and the Medical Center of Vermont (now Fletcher Allen Health Care) that if they performed the procedure in a medical facility he would not investigate or prosecute them.

“I had total discretion as state’s attorney to prosecute or to not prosecute even valid laws that I might decide were not in the best interest of the state to prosecute a crime,” Leahy explained.

At one point, he got a call in the middle of the night about a young woman who had nearly bled to death from a botched abortion. Leahy investigated and found that the abortion was procured by a local man with a long criminal record. It turns out the man would help young female coeds get abortions and then he would blackmail them afterward for money or sex, Leahy said.

When Leahy prosecuted him, the defense attorney said he would fight the case.

“It turned out he was having the abortions performed by a woman from Montreal who had come down to do them,” Leahy said.

Leahy brought the woman to court, escorted by Canadian Mounties. In negotiations, he told the attorney that “she will testify that she learned to perform abortions on prisoners in Auschwitz. ‘Now do you want to go to trial? Do you want to trust your luck with that jury?’ They pled guilty.”

Soon after Leahy sent the blackmailer to jail, he talked with doctors about the case. They were concerned that eventually they would be prosecuted under state statute and subject to a 10-year felony conviction.

“They knew I’d keep my word, but the next person would not be bound by what I had done and could not be,” he said.

Leahy told the doctors he didn’t want someone dying from an abortion, “despite how anyone feels about abortion,” and he began to think of a way to bring the situation to a head. He thought the law had “serious constitutional problems” under the Vermont Constitution.

Jackson Beecham, a doctor from St. Johnsbury, filed an injunction for any prosecution by Leahy, “knowing that I wouldn’t prosecute anyway.” Beecham sought a declaratory judgment to test the validity of Vermont criminal law related to abortions.

“It was a friendly suit against me to set a new precedent,” Leahy said. “The Vermont Supreme Court, they knew what we were doing, but they took it (the case), anyway.” At that point, Jeffords, then the attorney general, wanted to get involved, too.

Leahy says he presented the cases that would uphold Vermont’s law in his arguments on behalf of the state before the court, then he proceeded to tell the justices that as an officer of the court it was his duty to advise them that the law was unconstitutional and should be invalidated. The Vermont Supreme Court agreed.

“By this decision, we hold that the Legislature, having affirmed the right of a woman to abort, cannot simultaneously, by denying medical aid in all but cases where it is necessary to preserve her life, prohibit its safe exercise,” the justices wrote in their decision. “This is more than regulation, and an anomaly fatal to the application of this statute to medical practitioners.”

Jeffords under pressure from the Right to Life Committee in Rutland County, his hometown, pressed the court to reconsider the arguments, according to Leahy. The justices declined to do so.

“I remember having the same Right to Life folks who were pressuring the attorney general, pressuring me not to run (for state’s attorney),” Leahy said. “I decided to run for something else.”

In 1974, Leahy won a seat in the U.S. Senate.

Leahy supports repealing the state law, but he says in a way it doesn’t make any difference whether the Legislature does it or not because it’s invalidated, but “if they want to take it off the books, then take it off the books.”

“As a Vermonter I know the law is unenforceable, and it should be,” Leahy said.

Follow Anne on Twitter @GallowayVTD

Anne GallowayAnne Galloway

Comments

  1. And Leahy ran for Senate as a Republican and somewhere along the way decide he wasn’t and switched parties. Looks like his ideology ran more along the lines of the Liberal Left. He couldn’t decide where he belonged and, I think, tried Progressive, Independent and then settled on just plain Democrat…..sort of. Who is Patrick Leahy?

    • Peter Liston :

      Leahy has always been a Democrat. He never ran as a member of any other party.

  2. I agree that women should have this right…that being said, I think it should not be allowed after 14 weeks.

    • Jim Barrett :

      I agree with your 14 week limit and would really be happy to see no abortions. We know life begins at conception , but for some that isn’t good enough as some have decided to kill thier unprotected pre born babies whenever convent. leahy being a good Catholic is violating the laws of the Catholic church and I dare him to ask the pope or a Cardinal if his support for the intentional murder of pre born babies is OK!

  3. rosemarie jackowski :

    Maybe it should not be allowed after the sperm meets the egg.

  4. Theresa Burke :

    When I read this bill (I hope everyone does before deciding), it seems that whether or not it is allowed now by way of Roe v Wade for women to seek to abort their children, a bill like this is beneficial to protect women and children from abuse and from women being coerced to have abortions by those in their lives that would benefit from the child’s and /or mother’s demise. The bill speaks to me of the protection of the lives of pregnant women and their infants. I’ve known those who’ve felt fearful for their lives and the wording of this law could work to protect them. I remember last year an organization was going into abortion clinics around the nation and by video- taping interviews, exposed the reality of pimps routinely bringing their “slaves” in for abortions without concerns of law issues, as well as the lack of oversight into suspected abuse of young girls. Are our laws enabling the abuse of the weaker of society while lining the pockets of a greedy and heartless industry? Females are propagandized from a young age into believing they should be thrilled to have the “freedom” to allow their abusers to never be held responsible for their heart damage or their children’s deaths it seems. Of course another side to this is that on a national level most educated people can easily see that life begins at conception (the concept is seen in any basic biology text), so there is concern that Roe v Wade is obsolete and that the majority of Americans do not support tax payer funding of abortion as well as providing abortion after 15 weeks of pregnancy. With the “ruling party” trying to force single payer health care on our state, there is a concern that the health panels would not be able to dictate which babies would get to live to “enjoy” the single payer system if it was clearly illegal to harm the mother or child.(Duh, shouldn’t all women and children be protected under law??) There’s some trembling happening I guess. The abortion industry is a “lifeline” of funds to some and will be a source of power in the government run single payer system. Women need to shake off the deception dust and stop letting themselves be used as pawns in the political power game.

    • Kathy Nelson :

      Theresa, women have always been pawns in the political power game. And women have always been on the losing end of the brutality of religion as well. Women become the spoils of war and the slaves of sexual perverts who are almost always men. At the crux of this is sexual reproduction and who shall have the power over it.
      Those who oppose a woman’s right to take responsibility for her choices in reproduction are those who fear a change in regime. They are not supporters of the pre-born they are worshippers of obsolete traditions that both men and women can not adhere to. Given a choice most women would prefer to use birth control to prevent unwanted pregnancies, and they would expect men to do the same. Abortion is a last resort, but must remain safe and legal because it must remain a choice. No woman should die as a result of a botched back alley abortion.
      Please consider that if a woman’s right to choose is lost than so should a man’s “right” to have sexual intercourse be lost. Responsible use of power must have balance.

  5. Amelia Silver :

    I continue to be utterly amazed by the fact that abortion is legal in Vermont but for some reason it isn’t in Bennington County. It’s de facto not legal in Bennington and there is not a single doctor in the county stepping up. Take a look at the teen pregnancy rate in Bennington and weep. Young women (girls in many cases, ages 12, 13 and 14) must have access to transportation and a helpful adult to travel to Rutland, Lebanon, NH or Springfield, MA if they choose to terminate a pregnancy.

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