Eileen Haupt: Prop 5 would eliminate all state restrictions on abortion

This commentary is by Eileen Haupt of Jericho, a board member of the Vermont Right to Life Committee.

In Dr. Lauren MacAfee’s commentary, she claims that opponents of the proposed amendment (Proposal 5) are spreading “false and misleading information” about what the amendment does and doesn’t do. She takes particular issue with opponents’ claims that the amendment would allow “abortion up until birth.”

In one sense, she is right. There really is no abortion up until birth, because once an abortion takes place, there is no birth. 

But she is wrong that opponents of the amendment are spreading false and misleading information. When they use the term “abortion up until birth,” what they mean is that there are no state restrictions on abortion, even up to nine months, the usual time when birth occurs. This is entirely true. Even MacAfee admits in her own commentary that there are currently “no restrictions on the practice of abortion in Vermont” and that the proposed amendment would not change that.

If the proposed amendment places no restrictions on the practice of abortion, then it does indeed allow “abortion up until birth” (nine months). If it didn’t allow abortion up until birth, there would be restrictive language in the amendment stating so, something to the effect of abortion being a constitutional right “before viability” or “up to 20 weeks gestation” or “before the third trimester.” But the proposed amendment has no such language, and so by default, it allows “abortion up until birth” (nine months).

In fact, as all abortion advocates know, that is the whole point of the proposed amendment.

The U.S. Supreme Court has determined that restrictions on abortion in certain circumstances are constitutional. Most states have enacted some kind of restrictions, such as prohibiting late-term abortions or abortions after babies can feel pain, prohibiting public taxes for being used to pay for abortions, or allowing parents to be notified of their minor daughters’ abortions.

However, no Vermont legislative session in the past 50 years has passed any common-sense restrictions, thereby holding a passive acceptance of unrestricted abortion. Once the Legislature passed the “Freedom of Choice Act” in 2019, the state’s position was no longer passive acceptance; it was deliberate and unequivocal support of unrestricted abortion up until birth.

Still, restrictions are currently still possible. If Vermonters become repulsed by the fact that abortion up until birth has the state’s stamp of approval, they could elect legislators who would be willing to repeal the 2019 law and put in place some common-sense restrictions, as other states have done.

If the proposed amendment becomes part of the Vermont Constitution, however, Vermonters will no longer have the flexibility of enacting even the most minor of common-sense restrictions to abortion. Repealing a constitutional amendment could still be possible, but highly unlikely, as it would require a lengthy and difficult effort.

So, the most significant difference between what Vermont currently has and what we will have if the proposed amendment is approved by the Vermont House and then by voters in November is that the amendment will tie the hands of Vermonters so they can never put restrictions on abortion. 

Of course, this is exactly what abortion advocates want. But is it really what most Vermonters want?

Vermonters, even pro-choice Vermonters, would be smart to leave things as they are and reject the proposed amendment. We would still have unrestricted abortion up until birth, as we have now (tragically, in my view), but at least we would have options if we decided down the road that we are no longer comfortable with sanctioning unrestricted abortion up until birth. 

The proposed amendment (“Article 22” or “Proposal 5”) would open a Pandora’s Box of problems. It goes too far.