This commentary is by Barbara Walter, a resident of Middlebury.
Vermont voters will soon decide whether to accept constitutional Article 22, which reads: “An individual’s right to 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.”
One stated intention of this amendment is to ensure continued access to safe and legal abortion, but I am concerned that its passage will, instead, jeopardize that access already granted under Vermont Statutes 9493-9498, passed in 2019.
Article 22 promises reproductive autonomy to all individuals, but a pregnancy represents the reproductive autonomy of at least two people: the pregnant female, and the male who contributed the fertilizing sperm. If reproductive autonomy is defined as “… the power to decide when, if at all, to have children; also, many — but not all — of the choices relevant to reproduction,” whose wishes would prevail when disagreements arise, and who would decide?
In testimony to the Vermont Legislature (March 13, 2019), the Vermont Attorney General’s Office asserted that “…where two private individuals have competing rights, courts will weigh each of the interests at stake and fashion a solution, which is something we trust them to do all the time.” This sentiment was echoed by bioethicist Dr. Arthur Caplan, who responded to my query by saying, “I think these (questions) will all be litigated in court unless they spell out a bit more what they intend with the amendment.”
Perhaps Vermonters have become accustomed to being a liberal stronghold in a divided nation, but what would be the outcome of such a case, if appealed to the current Supreme Court?
The importance of preserving access to abortion is not restricted to cases involving immaturity, trauma, or medical risk. Consider my own family: My mother and father were married in 1962, at the ages of 19 and 24. They had a baby in 1964, 1965, 1966 and 1967. My mother found out that she was pregnant with their fourth baby while at her postpartum checkup for their third, and when that baby was born, two months past her 24th birthday, she needed my father’s permission to have a tubal ligation.
My mother had met with their parish priest to ask about using birth control, but she was told that preventing conception would be a sin. And with Roe v. Wade still six years in the future, obtaining an abortion would have been illegal. When people imagine an idyllic childhood or thriving family, do they imagine having four babies in as many years?
My father, whose reproductive autonomy had never been questioned, dealt with the commotion of energetic children by spending his evenings at a bar and arriving home after we had all gone to sleep, until leaving the family altogether during our collective adolescence.
Of further concern is that we do not have consensus over when an individual achieves “personhood,” and the question of when individual rights begin is being scrutinized as never before. When do the rights of a person begin — after birth? When the fetus “quickens”? When the heartbeat is detected? At the moment of conception?
Vermont legislators have already brought forward motions to establish fetal personhood (VT H0248 is the most recent), and passage of Article 22 would no doubt lead to a redoubling of those efforts.
If the idea of assigning personhood to a fetus seems farfetched, consider that I was named for a baby that was born, dead, on my father’s 10th birthday. The baby was named, baptized, and buried in the Walter family plot, and if you think this is silly or irrational, try to think, instead, of the balm it might have been for a grieving family. I won’t presume to know what was happening in 1948 in the hearts of a family that never discussed things, but if “funeralizing” a stillborn baby helped to comfort my grandmother, or if later naming one of his children after the baby that would have been his “birthday twin” might have somehow consoled my father, who am I to argue?
Though I regret the lack of nuance that has permeated the abortion debate for decades, I unequivocally support the right of a woman to obtain a safe and legal abortion, and I stand firmly in the camp of those who would allow a woman to decide, with her health care provider, whether to terminate a pregnancy. We need to value and honor the experiences of men, but in the end, a pregnancy is carried to term by a woman, and she will bear the majority of the consequences of deciding whether or not to have that baby throughout her life.
There is fairness in none of this, and that is where Article 22 falls short. It seeks to achieve parity in a situation that is inherently and unalterably unfair, and so it places on equal footing the rights of women, men, and potentially “the unborn.” By failing to specify and protect access to abortion, the writers of this article have jeopardized the reproductive autonomy that those who experience pregnancy already have.
