The Senate has taken up a proposal to amend the Vermont Constitution to protect reproductive liberties, part of a two-pronged push to shield access to abortion in the state amid fears of major changes at the federal level.
The introduction of proposal to amend Proposition 5, which would guarantee “personal reproductive liberty” to all Vermonters, comes after the House passed legislation in February that would enshrine abortion rights in state law.
The House bill is expected to sail through the Senate in the coming weeks. But first the upper chamber is taking up the constitutional change, which will be a years-long push if successful.
Both proposals are in response to the appointment of Justice Brett Kavanaugh to the Supreme Court, creating a conservative majority that many fear will overturn a landmark decision on abortion, Roe v. Wade, opening the way for states to restrict abortion.
The constitutional amendment would eventually need to be approved by voters on a statewide ballot.
But before it even gets there, it would need to pass with a two-thirds majority in the Senate and a majority in the House. Then it would have to pass both chambers again in a subsequent legislative biennium, before voters ultimately weighed in on the proposal.
Sen. President Pro Tem Tim Ashe, D/P-Chittenden, who signaled in 2018 that the amendment would be a key Senate priority this year, believes there is broad support for the measure in the chamber.
“I don’t have a crystal ball but I believe that once there’s language that’s finalized, I believe that we’ll be really close,” he said of the amendment’s prospects for passage. “It’s my expectation that we will have a vote on the Senate floor, and I’ll be pushing to make it pass.”
No state in the nation has amended its constitution to protect access to abortion, according to the Guttmacher Institute, a pro-abortion rights research group.
West Virginia and Tennessee have, however, passed amendments to weaken reproductive rights, modifying their constitutions to explicitly state they do not provide abortion protections.
Sen. Ginny Lyons, D-Chittenden, the sponsor of the bill, said the change to the Constitution was an effort to ensure that shifting political winds would not leave people vulnerable.
“It asserts a right, and a law can be changed, so a law is much more mutable than a constitutional amendment,” she said. “A law could be overturned as the result of a Supreme Court decision, but the Constitution is different.”
Lyons said the state needed to have a conversation about whether people — men and women — should be guaranteed the right to make decisions about their own bodies.
“We’re trying to reflect on where we are at as a culture and society,” she said. “Our goal is to have language that is legally defensible and reflects values we have in this state.”
The amendment was discussed during a Senate Health and Welfare Committee hearing Wednesday. It has been criticized by some who believe its language is too broad.
Sharon Toborg, the treasurer of the Vermont Right to Life Committee, a pro-life organization, said that the amendment could be “construed” to provide legal protection to reproductive technologies and methods that are in development and currently limited under state law.
She said she is concerned that by providing the right to “individual reproductive autonomy” that the amendment could permit parents to edit the genes of their children, for example, or select children based on specific genetic traits.
Toborg and others have also criticized Democrats for overstating the threat to abortion protections at the federal level, and called their concerns a “fear tactic.”
“As much as I would like to see Roe overturned I just don’t see it happening any time in the future,” she said. “I can’t even believe that someone would testify seriously that that’s a realistic expectation.”
Chloé White, policy director for the Vermont American Civil Liberties Union, told senators Monday that states around the nation have placed 400 restrictions on abortion since 2010, and that 20 cases pending at the Supreme Court level could undermine or dismantle Roe.
“Roe and the fundamental right to an abortion are in grave danger,” she said. “This proposal is a simple affirmation of our values, values that Vermonters have cherished for generations.”
During Monday’s hearing, many others, including Attorney General TJ Donovan and Bor Yang, executive director of the Vermont Human Rights Commission, threw their weight behind the proposal.
“We all know that politics is a fickle business,” Donovan said, “and this will not be up to a future legislature or a future governor.”
The current version of the bill would add the following language to the Constitution:
“That the people are guaranteed the liberty and dignity to determine their own life’s course. The right to personal reproductive autonomy is central to the liberty protected by this Constitution and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”
Colin Meyn contributed reporting
