Newly introduced federal abortion ban legislation has reignited conversation in Vermont around how a proposed state constitutional amendment could — or couldn’t — impact procedures late in a pregnancy.
On Tuesday, months after a conservative majority of the U.S. Supreme Court struck down Roe v. Wade, U.S. Sen. Lindsey Graham, R-S.C., introduced a bill that would ban abortions nationwide after 15 weeks gestation, or shortly into the second trimester of pregnancy.
Graham’s bill — titled the Protecting Pain-Capable Unborn Children from Late-Term Abortions Act — has garnered significant attention for its use of the non-medical term “late-term abortions,” and brought renewed attention to government regulation of abortion based on gestational age. The bill is considered unlikely to advance in the near future, given that Democrats currently control Congress and the White House.
In Vermont, there are no state-imposed gestational age limits on abortion. Such restrictions are determined by medical providers. And if a majority of voters approve Article 22 come November, the state constitution will be amended to prevent lawmakers from passing any such laws restricting abortion in the future.
According to the Pew Research Center, 70% of surveyed Vermonters think abortion should remain legal in all or most cases. That may explain why Vermonters for Good Government, a group campaigning against the proposed amendment, has focused its campaign messaging around the idea of abortions performed further along into pregnancy.
Campaign materials mailed to Vermont voters in August read in bold letters, “Article 22 is intended to put LATE-TERM ABORTION OF FULLY DEVELOPED BABIES into the VERMONT CONSTITUTION,” according to a copy provided to VTDigger.
“At what point should even pro-choice people say it goes too far? Seven months? Eight months? Nine months?” the mailer asks, alongside illustrations of fetuses.
Lauren MacAfee, an OB-GYN who works for the University of Vermont Medical Center, told VTDigger that the term “late-term abortion” is not used in medical settings and instead “was brought about by anti-choice folks to really evoke a sense of emotion and bring about this idea of a 40-week-term (full-term) baby being aborted, which really does not happen.”
“No, that’s a delivery,” she said.
Lucy Leriche, a lobbyist for Planned Parenthood Vermont Action Fund, characterized the campaign rhetoric as “scare tactics.”
“This hateful, cynical view of this evil person who is going to want to terminate a pregnancy at nine months — it’s absurd,” Leriche said. “I don’t know any of those people. I don’t know them. I don’t think they’re here … I really believe that Vermonters will see through this nonsense.”
According to MacAfee, the term “late-term abortion” has “never been clearly defined,” spanning anywhere from 20 to 24 to 28 weeks — or, in the case of Graham’s bill, even earlier.
Gestational age is measured from the first day of a patient’s last menstrual period, and MacAfee said 15 weeks would amount to “just under four” missed periods, barely into the second trimester.
“I do think it’s intentionally vague, because that serves, actually, the anti-choice movement to really garner that emotional, kind of visceral reaction from the public and bring them to think that we’re talking about 39, 40, 41-week pregnancies, which is not actually what we’re referring to,” she said.
Providers’ rules
Unlike surrounding states in New England and New York, Vermont does not have a gestational age limit on abortion procedures. But according to providers, that doesn’t mean there are no rules.
Abortions after 22 weeks gestation in Vermont are exclusively performed in a hospital setting, at the University of Vermont Medical Center. With 22 weeks gestation being the medically accepted age of fetal viability — meaning the fetus, if healthy, could survive outside of the womb — every abortion after that point must first be reviewed by the hospital’s ethics committee. The third trimester begins at 27 weeks, and lasts until birth. Forty weeks is considered full-term.
State Rep. George Till, D-Jericho, who also serves as the division chief of General OB-GYN at UVM Medical Center, wrote in an op-ed that post-viability abortions are performed “in very specific circumstances, including for severe fetal anomaly, a fetal condition incompatible with life, or a dangerous, possibly life-threatening maternal health reason.”
According to a recently released 2020 Vital Statistics Report by the Vermont Department of Health, 14 abortions were performed in Vermont in 2020 at 21 or more weeks gestation. Of 1,227 abortions completed that year, 959, or 78%, were before 9 weeks gestation. More than 92% were completed by 12 weeks, or the end of the first trimester.
In 2020, there were 36 abortions performed in Vermont in which the fetus was aged 16-20 weeks. A bill like Graham’s would prohibit those abortions, except in cases of medical conditions life-threatening to the mother, or in cases of rape or incest. The bill does not contain exceptions for severe fetal abnormalities.
MacAfee told VTDigger that such fetal conditions are often first detected at a 20-week ultrasound appointment. If a medical provider couldn’t offer options to a patient in the case of severe fetal anomalies, MacAfee asked, “why even bother” with the 20-week scan?
Rep. Anne Donahue, R-Northfield, is working as a spokesperson for Vermonters for Good Government. She told VTDigger that she believes Article 22, should it pass, could “absolutely” open up UVM Medical Center to litigation, should its ethics committee refuse to provide an abortion to a patient past 22 weeks.
“The court could determine that the hospital could not put that barrier in front of any woman who was seeking a third trimester abortion for any reason,” Donahue said. “Vermont has never done it — the Vermont Supreme Court — but there’s precedent in other states for applying a state constitutional amendment to private entities. So, that could be applied to the hospital, saying, ‘You are violating this woman’s constitutional right. You are not allowed to interfere.’ That’s what Article 22 says.”
UVM Medical Center’s legal counsel does not agree with Donahue, and said there would be no legal reason to change the hospital’s ethics process for abortions post-viability should Article 22 pass, according to UVM Health Network spokesperson Annie Mackin. The hospital also has an opt-out policy for doctors who wish not to provide certain procedures — beyond just abortions — unless a patient’s life is in imminent danger. Mackin said that policy would remain in place.
“We have a robust opt-out policy and we’re going to maintain it,” Mackin said.
As for the ethics committee’s review of post-viability abortions, Mackin said, “We’re going to continue evaluating cases the way we do in providing health care that our patients need.”
Ella Spottswood, who serves as solicitor general in the Vermont Attorney General’s Office, also told VTDigger that Article 22 would not put UVM Medical Center’s policies in legal jeopardy.
“The very simple answer is, the state constitution binds the state government, not private parties,” she said Friday.
With Democrats in control of both Congress and the White House, it is unlikely that Graham’s bill, or a federal abortion ban like it, will advance in the immediate future. Congressional Republicans appear split on the proposal, with Senate Minority Leader Mitch McConnell, R-Ky., telling Politico this week that most GOP senators “prefer this be handled at the state level.” (In May, McConnell said a nationwide ban was “possible.”)
But if a national ban like Graham’s were to pass, Vermonters would likely be subject to it, even with Article 22 in place. Peter Teachout, a constitutional law scholar at Vermont Law School, told VTDigger in June that a nationwide ban passed by Congress would supersede the state constitution, due to the Supremacy Clause of the U.S. Constitution.
“As far as protecting against federal legislation banning abortion, (Prop 5) is like a house of straw,” Teachout said in June. “It will not do that.”
Donahue — who said she is “completely opposed” to a nationwide abortion ban — said she thinks voters are being “misled” about Article 22’s efficacy in the event of a nationwide ban.
“Passing Article 22 doesn’t do a thing to protect against anything, in any direction, that happens in Washington,” Donahue said. “Folks have forgotten their eighth grade civics about the Supremacy Clause.”