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[O]ver two days of debate on a sweeping abortion rights bill this week, House lawmakers’ opinions on reproductive access were front and center.
The chamber passed H.57, a bill that would protect abortion rights without restriction, on a 106-37 vote.
“It’s about just simply codifying existing practice,” House Speaker Mitzi Johnson said before the start of the floor debate on Wednesday. “It’s pretty straightforward.” Current state law does not place restrictions on abortion access.
But dissenting voices forced House members to confront questions about how the broad new protections could affect abortion procedures generations into the future. At least two amendments, which were voted down alongside several others, would have limited abortion access to the first 24 weeks of a pregnancy.
The debate placed scrutiny on current practices around abortion care late in pregnancy. Democrats and medical providers stressed that third trimester abortions are rare, and patients considering them are typically weighing major risk factors.
“People don’t take this lightly,” says Dr. Ira Bernstein, the chair of obstetrics and gynecology at the University of Vermont Medical Center. “I think that anybody who believes that women come into this with a cavalier attitude doesn’t understand the process.”
Bernstein says the hospital has strict practices for terminating pregnancies at various stages. After 23 weeks, any request for a procedure requires a “broader review” by a panel that includes both medical staff and hospital ethicists. The panel considers risk factors for both the mother and child, he says, and every case is different.
Bernstein says that while the proposed law wouldn’t alter this decision-making process as it stands, he believes doctors, rather than lawmakers, should be establishing the limits.
“I make decisions about health care every day in my interaction with patients,” he says. “I do not need government, nor do I think it’s particularly helpful for government, to help provide guidelines for clinical care.”
On this week’s podcast, Bernstein discusses the doctor-patient considerations that he says get lost in abstract discussions about abortion policy. Plus, VTDigger’s Xander Landen describes the political ramifications of this week’s debate.
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This week, the Vermont house took up a bill that would protect unrestricted access to abortion in Vermont.
Mitzi Johnson: We have a bill in front of us today that, it’s about just simply codifying existing practice and protecting individual decisions in healthcare.
This is House Speaker Mitzi Johnson.
Mitzi Johnson: It’s pretty straightforward.
Johnson’s chamber debated this bill for two full days. And it passed by a wide margin: the final vote was 106 to 37. But Republican lawmakers and some members of the public continue to oppose this bill because it lacks any restrictions on abortion access.
Xander Landen: The origin of this legislation is a concern that with a now conservative majority in the US Supreme Court, that Roe vs. Wade, the landmark Supreme Court decision that sort of guaranteed abortion rights in this country, could be overturned.
Xander Landen has been covering this bill for VTDigger.
Xander Landen: And we’re seeing legislators — not only in Vermont, but across the country, with democratic majorities — taking steps to enshrine abortion rights and access to reproductive health care into state law. So that’s what we’re seeing in Vermont with this legislation.
H.57, as written — abortion policy experts are saying that this would be likely the most expansive protection of reproductive health services in state law in the United States, throughout the country.
So before we get into what happened this week, I feel like we should acknowledge that we are two guys talking about what is essentially a women’s health issue. Why were you following this debate?
Xander Landen: Well, I am VTDigger’s political reporter, and so I follow sort of the issues that are the most controversial, political in the State House. This legislative session has been going on for a couple of months now. And this has become very quickly the biggest issue of this session.
What did this debate show us about the politics of the Legislature right now?
Xander Landen: In November, Democrats picked up a bunch of seats in the House of Representatives. They already had a majority, but now they have an even bigger majority. And that gives them even more power to push through their agenda.
Democrats, you know, wrote this bill, which they say is essentially just codifying the state’s current abortion practices into state law, and protecting them, and making sure that a federal overturn of Roe v Wade would not affect those rights.
Mitzi Johnson: It all becomes — if Roe v Wade falls, the landscape gets gets very shaky. We have seen courts in some jurisdictions start to restrict existing rights and freedoms and we want to make sure that future women in Vermont have the same options and protections that women had for the last 46 years here.
Xander Landen: The key players were really the House Speaker, Mitzi Johnson, and the House Judiciary Committee Chair Maxine Grad. They had been facing criticism from citizens and from Republicans saying that this legislation goes too far. The concern is that if we say that there there are no qualifications and no restrictions to when a woman can seek an abortion, that women are going to start having late term abortions, abortions later and later into pregnancy.
And what they’ve said, you know, the way that they’ve sold this proposal again and again, is by saying that this doesn’t change the way that abortions will be delivered in Vermont. It only enshrines the current practice and the current policy as it relates to abortion access into state law.
Mitzi Johnson: If people are unhappy with what is currently available, they’re going to be equally unhappy with with this law. We have asked medical providers and our legal staff and various lawyers what could be allowed that is not currently allowed. And the answer is nothing.
Maxine Grad: It’s not changing anything.
Mitzi Johnson: It does not change a thing.
Xander Landen: Jill Krowinski, the Democratic House Majority Leader, framed the Democrats’ position on the floor very well. Basically saying that this is about securing rights that women in Vermont have had since Roe v. Wade, in the event that the decision was overturned at the federal level.
Rep. Jill Krowinski, D-Burlington: This legislation secures Vermonters’ rights. I believe it is a very deeply personal decision of whether and when and how to become a parent. And there should be no shame — there should be no shame — attached to whatever she decides.
Xander Landen: The way that we saw a majority play out is, we saw them put this bill on the table. We saw a lot of Republicans attempting to moderate this proposal, to dial it back, to amend it so that there would be a certain point at which abortion would be illegal or prohibited in the state.
Rep. Carl Rosenquist, R-Georgia: Compromise is what we strive for. And that’s what I’ve tried to do in this bill, to satisfy those people that are pro choice, giving a woman a choice up to essentially 24 weeks.
Xander Landen: There were two amendments for example, that would have prohibited abortion after 24 weeks or six months, which is the point at which a lot of medical providers say that a fetus is generally viable.
Rep. Robert Bancroft, R-Westford: I think it’s important that we deal with all the issues involved in this, and one of them is making sure that we don’t have late term abortions for no medical reason.
Xander Landen: We also saw attempts by Republicans to make abortion access in Vermont more restrictive than it is now. We saw attempts to require minors to have to get the permission of their parents to have an abortion, which under current law isn’t a requirement. We saw them attempt to give a fetus personhood rights under state law. There were about a dozen amendments that would have either dial back the democratic position, the democratic bill, or make abortion even more restrictive than it is. And every single attempt was shot down overwhelmingly. Republicans never even got close.
Robert Bancroft: The reason that we’re doing this is out of some fear of something is going to happen in the future. And I don’t know where that bright line is that we have to be concerned about this, but not that.
Xander Landen: I think that Republicans and some Democrats were ultimately upset that there wasn’t any compromise on this legislation. One Republican representative called this quote “fear” legislation that we’re legislating these protections based on hypothetical concerns.
Rep. Anne Donahue, R-Northfield: Madam Speaker, I find it a little unique that we would choose to make something legal in law because it won’t ever happen.
Xander Landen: And I think that it’s important also to note here that Republicans that I spoke with, they’re largely pro choice. Most of them don’t want to restrict a woman’s access to abortion in a major way. But they were concerned that this bill would sort of open up access too broadly, and they wanted to see some provision that would, as the House Minority Leader Patty McCoy told me, put bumpers on access. Not make it harder in all cases for a woman to get an abortion, but ensure that abortions in the later stages of pregnancy could not happen.
On Thursday, while House members were debating the last few amendments on this bill, I drove to the University of Vermont Medical Center, the largest hospital in the state. And I talked to a medical official there who told me there’s something lost when abortion procedures are discussed in the abstract.
Ira Bernstein: People don’t take this lightly. And I think that anybody who believes that women come into this with a cavalier attitude doesn’t understand the process. That has not been my experience. And I think that understanding the social circumstances and the conditions with each person comes is lost in the communications that are going on.
This is Dr. Ira Bernstein. He’s the chair of Obstetrics and Gynecology at the UVM Medical Center. He’s worked there for almost 30 years.
Ira Bernstein: I completed my residency training in 1987 and I completed my fellowship training here in complicated pregnancies in 1990, and I’ve been here on the staff since then, as faculty member.
Why did you choose to focus on women’s health?
Ira Bernstein: I came into medical school not at all oriented towards women’s health. As probably most males who are in their early 20s, this wasn’t a career that I had projected for myself. My experience during the course of my medical education — including specific what we call clerkships, which are exposures to the routine sub specialties within medicine, which is part of medical school — I just found a calling in obstetrics in particular and was really excited by my interactions there.
When you say calling, what does that look like?
Ira Bernstein: It’s more a feel than a look. I think that it’s about where you’re comfortable, the people that you’re interacting with, how you feel when you’re experiencing the clinical care environment. Birth’s a pretty exciting place to be. And I think for most people, it’s hard to believe that everybody doesn’t choose to go into obstetrics and medicine, since birth is such an amazing thing to be involved with for couples. And I have to say that that’s really what drove me primarily, I think.
Maybe an obvious question, but have you performed abortions?
Ira Bernstein: I have. I don’t know that it’s necessarily an obvious question, because I think that while we participate in training — and one of our obligations as a training program for residents is to have a abortion service that’s opt out so that people can choose not to participate, but we must provide that as part of our calling for having a residency as a clinical practice — that wouldn’t necessarily have been part of my practice, or it wouldn’t absolutely have been part of my practice. It might not have been as somebody who’s performing this procedure.
There’s a lot of conversation about it in politics, kind of in the abstract. How do you describe the reality of what an abortion procedure’s actually like?
Ira Bernstein: Well, I mean, I think the reality is the interaction with the patient. And that patients come to you with a concern clinically. For most of my career, the abortions that I participated in are what can be considered fetal or medical indications. These were not predominantly elective. That was just the the choice that I made and the ones that I was involved with. So in those environments, the vast majority of those women had babies that had significant medical problems that they believe would be burdensome to the children themselves, and to the families, and were making a choice that they didn’t want to continue those pregnancies. My responsibility as a provider of care was to say, I can help you with this and help that process along.
What’s it like for you as the provider? I mean, when somebody comes to you, and they’re in that situation, how do you move forward with that?
Ira Bernstein: Well, everyone’s different, right? Every interaction is about you interacting with a person. All of them have different stories, all of them come to you with different stories. And so every time you discuss this choice that a family’s making, or the woman’s making, you recognize the unique elements of that choice. Some you can relate to and some are harder to relate to. But I think that each time, you try to support the people and provide the care that they’re requesting.
When I was setting up this interview, I was told not to use the term “late term abortions,” and that it’s a term that you kind of bristle at. I wonder if you can explain why.
Ira Bernstein: It’s because it doesn’t mean anything to us. In pregnancy, we talk about term and preterm. Term for us is a gestational age period, which starts at 37 weeks of pregnancy and goes to 42 weeks. Late term for us is beyond 41 weeks. We call that late term in the nomenclature of pregnancy management. No one that I have ever met does terminations late term, meaning that they do them beyond the due date of 41 plus weeks. We have never done anything close to that here in terms of gestational age, and it is, at least for our institution, misleading to imply that we participate in those terminations at those gestational ages.
Around the recent debate here in Vermont, there’s been a lot of conversation — not about late term as you just defined it, but third trimester abortions, kind of late in pregnancy abortions. I wonder if you could talk a little bit about what that actually looks like. If somebody is in their third trimester, a patient decides that for whatever reason she wants to terminate that pregnancy — if that happened today, a patient came to you —
Ira Bernstein: Well, so first, we almost never do the third third trimester terminations at this institution. That would be an extraordinarily rare event. Because if we think about gestational age — and we talk about it in weeks as obstetricians, so the third trimester generally starts around 26 weeks. I can’t recall a termination we’ve done beyond 26 weeks.
On occasion, we do induce labor at that point in time, which has consequences to the fetuses, because we believe that we are acting in the best interest of the mother. There are diseases that happen during the course of pregnancy where moms get very sick, and they can be lethal diseases. They can kill women. And so we will sometimes choose to end a pregnancy in the third trimester, and those pregnancies are ended as a result of trying to save a mother’s life. And those can result in the death of a newborn. But we manage those pregnancies and those deliveries with the goal of survival, not with the goal of having the child not survive. The goal is survival for everybody. Sometimes, those late gestational age children died because they’re premature and they can’t survive on their own.
The more common gestational age windows that we talked about around termination services are those that are beyond 20 weeks, which is about halfway through the pregnancy. Those are typically considered later terminations. We do engage in those. And we have gestational age thresholds where we discuss different kinds of ways in which we manage the requests for that.
When you talk about a process to kind of review and kind of assess those different situations, what does that mean? What does that look like?
Ira Bernstein: So we had, historically, had a practice. It’s not — it has never been a policy. So it’s not a written policy, but it’s a practice, and that practice has been that for women who approached us up to 22 weeks in six days — which has sort of been one of our threshold for viability; in other words, this is a gestational age at which children cannot yet live independently — up until that gestational age, we have allowed individual providers in association with an individual department to decide about supporting a request for termination. So a woman comes in at those gestational ages, then we say, okay, do we have the skills to provide that? Can we do that? Is it reasonable request? And that’s all decided within the doctor patient relationship and inside the department.
At 23 weeks and beyond, our practice has been that there needs to be a wider consideration. And remember that we’re talking about not just what some people would consider elective terminations, terminations by choice. These are also with maternal fetal indications. Mom’s life is at risk, baby has a bad birth defect or genetic abnormalities.
Once we get to 23 weeks of gestation for all comers, we require a broader review of the request. And that means we include our pediatricians, our neonatologists who specialize in newborn care, hospital ethicists, geneticists, OB providers and our chief medical officer, all of whom can review the details of the case and make a decision whether it’s reasonable to proceed.
So those are the players involved. I’m interested to hear that there are ethicists involved there. It seems like everyone else in that chain is specifically coming at it from a medical perspective. I’m curious where the ethics come in, like what are the considerations discussed there?
Ira Bernstein: I’m not an ethicist. I have been at the table for these discussions. I think the issue of, what is the request based on? In other words, is it an elective request? Is it based on certain kinds of malformations or birth defects that are anticipated? What are the long term consequences of those birth defects to the family and to up to the child themselves?
There’s a balance there, because we have a wide range of possibilities for what kinds of abnormalities may exist. They may be lethal abnormalities, where none of the children are likely to survive and which pose a risk to the mom, and that may be beyond 23 weeks. And then the answer is pretty clear.
But it may also be an abnormality where the mom isn’t necessarily at risk, and there’s some chance for survival, and that survival may be associated with a 50% risk of neurologic injury, a 90% risk of neurologic injury. All of those have to be balanced, and there’s value judgments that are placed on those pieces. And I think that an ethicist can help to bring those to light, and help comment on the balance issues.
Why does this facility not provide elective procedures at that stage?
Ira Bernstein: I didn’t say we don’t provide elective procedures at that stage, I’ve told you that there’s a process by which those procedures are evaluated. It is uncommon for us to provide elective procedures beyond that, and I can’t recall us having done that, but it is not something that we rule out as a matter of routine. I think it’s plausible that we would consider that. But each of our providers also has a moral guide, and a kind of conscience about how they proceed. And I think the balance when you think about independent viability, when children can survive on their own independent of another changes the balance a little bit for some of our providers. And so the likelihood that someone would proceed with a purely elective termination, meaning that a woman’s choice without any evidence of ongoing threat to the mother of the child, there’s a different balance that goes on as gestational age advances.
It’s true for moms too. I mean, this is not just the providers who are balancing this off. I think it’s true for moms too. So every individual provider has to make a determination as to how they want to support or not support those independent choices.
What exactly do you mean by a different balance? How do the factors change?
Ira Bernstein: So I mean, we read in the news that the law that’s before the legislature would allow a termination — at due date, that somebody could end the pregnancy. I can’t imagine an environment in which any of the providers in my institution at this place would do that. I don’t believe that any of them would see that as an appropriate or defensible position relative to the balance of what this child’s independent life may be, in the absence of any other anomalies relative to the mom. Because we can induce labor, end the pregnancy, but not necessarily end the life of the child, at 40 weeks gestation. At 23 weeks gestation that’s a very different balance. At 23 weeks to station, the chances of survival may be 5% or 10% for the child with a 90% risk of neurologic injury long term. That has different implications for the child’s life. So those are the kinds of issues that you balance off as you think about different gestational ages.
You’re saying chance of survival is really kind of a key number.
Ira Bernstein: Well, I would say that it has played a role in where we defined the need for a broader consultation. That institutionally, we’ve used that as a guidepost.
One of the sort of hypotheticals that’s being thrown around in this debate is that down the line — maybe UVM has fairly strict standards around this, but that other doctors outside the system might come to Vermont, set up shop, and not follow those same standards. From where you’re sitting, does that seem like something that could happen?
Ira Bernstein: So, recognizing that there is no restriction on that today, that a provider could come into the state today and do whatever they wanted relative to termination care, because there are no laws in place — the idea that the law that’s been proposed passes, I don’t see how that changes the existing status.
Can I imagine that happening? One could imagine anything, right? Anything’s possible. Do I see that as likely? I don’t see that as likely. Do I see that as an institutional likelihood? I think the chances of that is zero. We are not going to change our practice.
If the law were to pass as it’s currently structured, we will continue to do what we are doing. Because we have internal guidance that we’ve all agreed to, to date, that says, this is the way we want to practice.
I won’t be here forever. Someone else will come in. They may have different ideas and thoughts about how all of this should work out. I won’t be part of that discussion.
That is something I’m curious about: How, as ideas about these sorts of things evolve over time, how do those practices and policies evolve along with them?
Ira Bernstein: It’s changed a little bit over time with the presence or absence of board guidance. The board guidance was pretty clear. And prior to the board dropping any guidance in this area, that department chair of OB/GYN had a lot of latitude with the elimination of that policy. This has now become an institutional policy which is owned in the chief medical officer position. The chief medical officer then owns the practice, the policy, which — we’re developing, you know, formal written policy, and it will apply to all healthcare services.
Similarly, once again, while we will establish guidelines for today and for tomorrow, over the course of time, these things can evolve. Other chief medical officers, other physicians, can think of these things in different ways and may choose to provide different kinds of guidelines and set up different rules and regulations.
One of the things that it does seem like this law would change in a way, it — in terms of when you’re looking at these hypothetical future scenarios, it does put a lot more burden on you, essentially, or on the medical landscape of Vermont, to make the decisions about how termination care works.
Ira Bernstein: Well, I mean, I’ve got to say, that’s my job. I’m an obstetrics and gynecology provider. I make decisions about healthcare every day in my interaction with patients. That’s what we do. We help women get optimal care in any number of areas. This is one of the areas where we do that.
You’ve drawn a distinction between termination services and all the other things we do. But for us, it’s part of the care that we provide for women. I don’t see that as a problem. I think that we’re well equipped to help women make these calls, in the doctor patient relationship, and to provide those services safely.
There’s no area where you would want any kind of narrowing from the state, any guidelines.
Ira Bernstein: I do not need government, nor do I think it’s particularly helpful for government, to help provide guidelines for clinical care. As I’ve mentioned earlier, we have provided some internal guidelines and standards that we live to because we believe they are correct, and we will continue to do that. Again, for me individually, it doesn’t matter that the state law changes. Our practice will not change in the short term.
Xander, what happens next with this legislation?
Xander Landen: Well, now it heads to the Senate where I don’t think anyone has any doubt that it will pass quickly and with almost unanimous support.
The Senate leader Tim Ashe has pledged this session to be also introducing an amendment to the constitution, Vermont’s constitution, that would additionally enshrine abortion access into law. Because an amendment takes longer to put into place, this law is actually meant to serve as sort of a run up to that. So we’re all expecting pretty fast and broad support for this in the Senate.
Where there’s a little bit of uncertainty is the governor’s office. Governor Phil Scott has said that he’s waiting to weigh in on this legislation until it gets to his desk. He wants to see what the legislature does.
Gov. Phil Scott: I’m watching, but it’s a conversation that they need to have first before I weigh in on that.
Which would lead one to think that he also wants to see some sort of provision in place that dials it back a little bit. He has said time and time again that he is pro choice, that he supports a woman’s right to abortion. But the fact that he isn’t coming out right away and saying I will support this bill, like the Democrats have, would lead one to think that he is waiting to see whether Democrats will put something to change the legislation from its current position to make it a little different.
So now we wait and see.
Xander Landen: So now we wait and see. And because this came out so early in the House, I suspect that it’s going to be a couple weeks in the Senate, it’s going to pass, and the governor’s have to going to have to make a decision on it. It would be hard to imagine him vetoing this legislation as someone who is pro choice. I don’t think he wants to restrict a woman’s access to abortion at all. It’s going to be sort of the details for him. That’s going to be what he’s looking at.
Okay. Thanks Xander.
Xander Landen: Thank you very much.
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