This commentary is by Pete Gummere of St. Johnsbury, a certified bioethicist with more than 10 years of hospital ethics committee membership.
Much fear used to promote Proposal 5 has been based upon what has happened in some states with a very different political climate.
Part of the rhetoric asserted that when the U.S. Supreme Court issued the Dobbs decision overturning Roe v. Wade, Vermonters responded with Proposal 5. That is false. The process began in 2019, more than two years before the Dobbs case was filed at the Supreme Court.
In fact, Roe v. Wade has never had an impact on Vermont law, nor will the Dobbs decision.
In fact, abortion had been legal in Vermont for a full year before Roe v. Wade was decided. Abortion was legalized by a Vermont court decision, Beecham v. Leahy, on Jan. 14, 1972. A year later, the ruling in Roe v. Wade was issued but added nothing to the access to abortion in Vermont.
Abortion access in Vermont was established by the state Supreme Court in Beecham. The Vermont Legislature never acted to impose any restrictions on abortion, despite Beecham leaving open the possibility of restriction, but not prohibition. Act 47 of the 2019 Legislature secured the Beecham decision in statute with no restrictions.
Some authors (such as, but not only, Rep. Maxine Grad) have asserted that there are no elective late-term abortions (i.e., 22 weeks gestation or more) in Vermont because all-late term abortions are done at UVM Medical Center, and only for grave fetal abnormality or significant threats to the well-being of the mother, and a case-specific approval of the medical center ethics committee.
Rep. Grad also asserted that if UVM eliminated the ethics committee or otherwise changed its standards, the Legislature would simply act to reinstate the restrictions currently established by the medical center. But that reinstatement would violate the very constitutional amendment being debated right now.
If the Legislature had wanted to restrict it after 22 weeks, such eventuality was not anticipated by those crafting the amendment. That was never the intent of the Legislature.
Also, no matter how robust the UVM Medical Center ethics committee might be, an ethics committee primarily has an advisory role. Any authority is derived from the institution itself. A patient with an explicit constitutional right to “reproductive autonomy” including a given procedure would not be denied the procedure despite the objections of an ethics committee or a hospital policy.
The Legislature has repeatedly refused to take up conscience protection concerning abortion and other medical services. Courts frequently take notice of legislative intent when handling difficult cases. UVM Medical Center would have grave difficulty in justifying its denial of service to a patient. After all, clinical professionals and medical institutions are quite risk-averse; they do not want to end up in court.
Some have even argued that professional standards of care recommended by the medical specialty societies would have to be observed. Does anyone believe that a medical professional society has the authority to override a state constitution?
But the fact is that Proposal 5/Article 22 applies statewide, not just to UVM. Would out-of-state second- and third-trimester abortion providers come to Vermont to take advantage of a constitutional protection they would have? And would this involve locations beyond UVM Medical Center?
As has often been noted by proponents of Proposal 5, especially when being asked what else is included in the vague language of the measure, this amendment goes beyond abortion. The authors wanted it to be broad enough to include emerging technologies. But how far? What else is being masked by the vague language of the proposal? The answer has consistently been, “The court will decide.”
Finally, I ask you to envision what happens if this measure is enacted. What new technological horizons will emerge?
There is genuine potential for late second- and third-trimester abortions to be done in Vermont. Of course, that would most likely be done at UVM Medical Center or one of its affiliates. The organs and tissues could be harvested. UVM Medical Center is a major teaching and research institution with a medical center that is operating at a deficit. What a creative way to offset those losses with a new funding stream supporting research on the tissues harvested on-site.
Moving beyond the clinical world, let’s look out at the streets, not just in Burlington. If “personal reproductive liberty” becomes a constitutional right, I suggest that could mean that laws banning prostitution become unconstitutional infringements on autonomy. That would mean that almost any town in the state could have its own “red light district.”
And, since the amendment applies to “individuals,” not just adults, what rights do parents give up? What rights are minors — even young children — given? Are we asking children to make adult decisions without input from their parents?
For a minimum, Proposal 5 is too poorly crafted and ambiguous to be approved. It would foster a variety of new social problems, and would probably require a new constitutional amendment. The Proposal 5/Article 22 constitutional amendment should not be passed by the voters. Please join me in voting “no” on Proposal 5/Article 22.
