Dave Gram: A warm coat of protection for reproductive rights

This commentary is by Dave Gram, a resident of Montpelier who was a longtime journalist with The Associated Press. He also worked for Seven Days and VTDigger.

Nine months after retiring from a 35-year Vermont journalism career, I still haven’t quite put my curiosity to rest, and it’s been aroused recently by questions concerning Proposal 5, an amendment which, if voters approve it in November, will enshrine reproductive liberty in Vermont’s Constitution. 

I recalled that in the months preceding my retirement last spring, Vermont’s news media had been described as male-dominated and had been scolded for, among other things, not interviewing enough women. It also occurred to me that the most prominent reproductive right covered by the amendment would be access to legal abortions, an issue of very high importance for many women. 

It seemed I’d better try to find some women to answer my questions.

I reached out by phone or email to five prominent, well-connected Vermont women likely to have good knowledge about the issues. The responses ranged from none at all, to you should talk to someone else, to I’ll talk to you but don’t quote me by name. 

The first and so far only person I’ve found willing to respond to my questions on the record has been Peter Teachout, a professor of constitutional law at Vermont Law School. Professor Teachout is, alas, male, but it didn’t seem that I was settling too badly, because he also is a highly regarded scholar in his field. He patiently and thoughtfully answered questions from a layperson with no formal legal training during a 45-minute phone conversation.

Proposal 5 says “that an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”

My questions concerned the final 13 words: What was this about “a compelling state interest achieved by the least restrictive means”? Could this be a Trojan horse?

Here’s why I thought abortion rights supporters might worry: Imagine that in some future decade, conservative Republicans win the governor’s office, majorities in the Legislature and on the state Supreme Court. What would stop them from finding a “compelling state interest” in “protecting the unborn,” and that the least restrictive way to do that would be to ban all abortions?

It might be tempting to think currently deep-blue Vermont never would come to such a pass, but within the past 50 years, the Green Mountain State has gone from solid Republican to the most reliably liberal state in the country. Meanwhile, the national political climate has shifted to the right, with abortion at the tip of the ideological spear. 

There are people active in Vermont right now, including the 41 House members who voted against Proposal 5 when it cleared the chamber on Feb. 8, who are working to bring just such a shift to the state. Constitutions and their amendments are written with an imagined shelf life in the hundreds of years. Would this  amendment survive the next shift in political winds?

I’ve long thought the core of the pro-choice side’s argument is that reproduction is one — maybe the only — part of life in which individual liberty always reigns supreme over state interest. With vaccines, it appears more than 80 percent of Vermonters are comfortable saying, “OK, I get that government doesn’t want me to infect my neighbor.” 

But reproductive liberty? That’s where the line is drawn. That’s where our duty to society is made falsifiable, and the statist rule is proven by its exception.

But here’s the key reminder I got from Professor Teachout: No right is absolute. I’m a big First Amendment supporter, but I understand you can’t yell “Fire!” in a crowded theater. You can’t march, chanting, through the streets at 2 a.m. Courts have found repeatedly that the state can find a compelling interest to limit free speech, but such limitations must be achieved in the least restrictive manner available. 

You can be asked to turn down your rally loudspeakers, so passersby can continue with their conversations, but the “least restrictive” standard means you likely won’t be required to turn them off completely.

Teachout joined some of the others who would speak only on background in saying that the “compelling state interest … least restrictive means” language is known in legal circles as the “strict scrutiny” standard. In many instances, legislatures pass laws, someone goes to court and challenges them and the court uses a less strict standard when deciding if the new law can stand. 

The lowest such standard is when a court finds the state has a “legitimate” interest in passing a law. A mid-level test, he said, is a finding that the state has an “important” interest and that the steps it is taking are “substantially related” to the problem it’s trying to solve. 

The highest bar for a new law to clear is the compelling interest, Teachout said, and that must be achieved by the least restrictive means.

Still skeptical, I asked Teachout why no other amendments to the Vermont or U.S. constitutions had language saying they could be narrowed only when a compelling state interest is found. He answered by saying courts had begun clearly articulating the “compelling state interest” standard only around 1970. “That’s why you don’t find it in the earlier amendments.”

And sure enough, the standard figured prominently in the 1973 Roe v. Wade decision. 

In the first trimester, state interest is minimal, the Roe court said, with the decision left to the medical judgment of the pregnant woman’s attending physician. In the second, the state could choose to claim an interest in the life and health of the mother. In the third, the state had an interest in the mother’s health as well as the “potentiality of human life,” as one scholarly analysis put it — interests a lot closer to compelling. 

And now the phrase “compelling state interest” shows up amid the words of Vermont’s reproductive liberty amendment.

Nothing is guaranteed in life. Even your warmest winter coat won’t keep you from freezing to death if you’re determined to fall asleep in a snowbank. Is the strict scrutiny standard perfect? Nope, it’s just the best you can get.

“You are not going to find any greater constitutional protection for reproductive rights than that which is reflected in … the strict scrutiny standard of review,” Teachout said.

Your warmest winter coat may fail you some day. It’s still a good idea to wear it when it’s really cold outside.

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