In a state that heavily favors access to abortion, those campaigning against the passage of Vermont’s November referendum on reproductive rights have tried to calibrate their message accordingly.
Even those who support abortion rights, they say, should vote against Proposal 5, arguing that the measure’s silence on gestational limits would guarantee an unregulated right to abortion, without exception. “Abortion anytime for any reason, up to nine months, shocks the conscience,” Christina Nolan, a former U.S. Attorney for Vermont and an unsuccessful Republican U.S. Senate candidate, wrote in a recent op-ed.
The amendment’s supporters counter that the specter of abortions late in a pregnancy raised by the opposition ignores medical reality and is intended to shame women.
But on Proposal 5’s legal implications, they are in large part in agreement with the opposition: new state-level restrictions on abortion, if the amendment prevails, will face a steeply uphill battle. That’s the point.
It’s “completely false” that no law of any kind could be passed in Vermont in the future restricting abortion if Proposal 5, also known as Article 22, gets the greenlight from voters next month, said Lucy Leriche, vice president of public affairs for Planned Parenthood Action Fund. But such laws would be “really hard” to put in place, she said.
“The state would have to have a really, really, really good reason to infringe upon the right, and that’s exactly what we wanted to do. We wanted to create a language that would be as protective as possible,” Leriche said.
The proposed amendment reads, in full: “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.”
Multiple constitutional law experts reached by VTDigger this week explained that the reference to a “compelling State interest” specifically leaves the door open to future restrictions.
“Generally speaking, no constitutional right is absolute — regardless of the language,” said Caroline Mala Corbin, a constitutional law professor at the University of Miami. “But this proposed constitutional right makes very clear that the state can limit it if it has a compelling government interest.”
The measure’s critics have put little faith in the “compelling state interest” clause. In a mailer aimed at “pro-choice” voters, for example, Vermonters for Good Government, an anti-abortion group opposing the amendment, argues that it “goes far beyond (Roe v. Wade) by eliminating and preventing any limitations of late-term abortion whatsoever.”
The new right to reproductive autonomy would be so strong and so absolute, critics have argued, that even existing in-state medical regulations surrounding abortion in the second and third trimester could be in jeopardy. Prop 5’s supporters say just the opposite: the amendment will keep abortion in the hands of patients and their healthcare providers, where it belongs, and is already highly regulated by the medical field.
Major medical associations in Vermont are unanimous in their support of Prop 5. The University of Vermont Medical Center, which subjects all abortions after 22 weeks to a review by an internal ethics panel, and the Vermont Attorney General’s office have both said they have no concerns whatsoever about the constitutional amendment tying the hands of health care providers.
The amendment’s language would be subject to interpretation by Vermont courts, but “on its face, it restates the framework adopted by Roe v. Wade,” wrote Martha Davis, a university distinguished professor of law at Northeastern University in Boston, in an email to VTDigger.
“Federal courts found that Roe did allow the state to impose some restrictions on abortion, such as mandating parental consent for minors (provided there was a judicial bypass option),” Davis wrote. “Applying Roe, federal courts also found that as a fetus reached viability, the state would have an increasingly compelling interest in regulating abortion.”
“Given the history of federal judicial decisions following Roe, permitting restrictions, I don’t (see) any basis for the opposition’s claims about ‘abortion on demand’ up until birth,” she continued.
Lucinda Finley, a professor of law at the University of Buffalo Law School, wrote that the claims made by the measure’s critics “do not understand (or perhaps deliberately misstate) how the ‘compelling state interest’ test works.”
“If a state law banned abortion after a fetus is viable unless necessary to save the life of the woman or for serious risks to the woman’s health, such a law would highly likely be upheld under the proposed language since it would be justified by the compelling (state) interest in preserving viable fetal life when there is no grave threat to the woman’s life or health,” wrote Finley, who specializes in reproductive rights.
“The amendment specifically permits some restrictions — those justified by compelling state interests,” agreed Leah Litman, an assistant professor of law at the University of Michigan who teaches constitutional law.
Asked to provide a legal justification for the group’s claims, Matthew Strong, the executive director of Vermonters for Good Government, provided a quote from Robert P. George, a professor of jurisprudence at Princeton University. George wrote in an email to the organization in 2019, when the amendment was first being considered, that the phrase “reproductive autonomy” was “a well-known euphemism for licensing the right to kill a human being.”
A devout Catholic, George is one of the country’s leading conservative public intellectuals and a staunch opponent of both abortion and same-sex marriage.
“Absent an explicit definition of ‘reproductive autonomy’ as not including the right to kill or order the killing of prenatal human beings by elective abortion, Vermont courts would interpret it as including such a right, and would refuse to treat the protection of unborn human lives as constituting a compelling State interest,” George wrote at the time.
Rep. Anne Donahue, R-Northfield, a spokesperson for Vermonters for Good Government, conceded that while the “compelling state interest” bar is a high one, it is “not insurmountable.”
But she argued that, should Proposal 5 make it into the Vermont Constitution, a judge would be hard-pressed to find a “compelling state interest” in any new restrictions on abortion if the Legislature were to eventually pass such regulations. A judicial review of its merits would have to include consideration of the fact that Vermont lawmakers had rejected explicit limitations in the past, she said, including when drafting Article 22.
“Obviously, we are all speaking about predictions of ‘likelihood,’” Donahue wrote. “It will all be in the hands of the court — which has been a significant concern regarding the many other questions where there is no extensive legislative history.”
Corbin granted that a scenario in which a “rogue judge” rules that “government’s interest in the fetus does not become compelling until birth” is “theoretically possible.”
However, she said, “It’s not a probability given our world. And I think if you’re talking to a legitimate scholar, it’s going to be hard to find someone who thinks this is a real possibility. As opposed to an advocate, (where) the ends justifies the means, and they’ll say anything it takes to defeat it.”
Writing for the Intercept in March, Judith Levine, author and reproductive justice activist who splits her time between Vermont and New York, offered a friendly critique of the state’s proposal, arguing the amendment both declared an expansive and fundamental right at the same time as it second-guessed it.
“Appending an asterisk to a human right is asking for trouble. Does the Eighth Amendment prohibit cruel and unusual punishment ‘unless justified by a compelling state interest’?” she wrote.
Architects of the amendment, including Leriche, argue that explicit mention of a “compelling state interest” strengthens the amendment, because it instructs courts in the future to use the strictest standard of review when weighing any new restrictions on reproductive rights in the future.
But Levine cites a series of laws passed by states to restrict abortion — some as early as within six weeks of gestation — that invoke a “compelling state interest.”
In an interview, Levine called the opponents of Proposal 5 smart for taking aim at the amendment’s “loosey goosey” language — although she argues that it’s actually those who favor abortion who should be nervous about any wiggle room.
“It’s weird, I think, that the other side says that it’s unabridgeable because the very amendment’s language says it is abridgeable,” she said. “I think the weakness is on our side.”
Voters will cast ballots on Proposal 5 during the general election on Nov. 8. Early voting by mail is underway.