This commentary is by Aaron Adler of Brookfield, a retired lawyer who was counsel to the Vermont legislature from 2008 to 2018 and previously worked as an environmental and utility regulator for the state of Vermont.
Vermonters should vote yes on Article 22, the constitutional amendment to protect the freedom of individuals to make their own choices related to reproduction.
Do not be misled by the deceptive arguments of Article 22’s opponents, who seek to impose on all their religious beliefs about abortion and procreation.
Article 22 would add a right to personal reproductive autonomy to our state’s constitution. It would protect the rights of Vermonters to make their own reproductive choices, including whether to carry a pregnancy to term or have an abortion, to choose or refuse sterilization, or to choose contraception.
Enshrining this right in the Vermont Constitution is the highest level of legal protection on a state level that we can provide for reproductive freedom. It prevents a future legislature from taking this right away without further constitutional amendment.
Article 22 is written with care. It refers to “autonomy” — that is, the ability to act and to make decisions independently, free from external control. That autonomy relates to reproduction, which is the production of offspring. And that freedom is “personal,” meaning that it belongs to the individual and pertains to their person.
The amendment also allows the state to regulate an individual’s personal reproductive autonomy if “justified by a compelling State interest achieved by the least restrictive means.” These words come from U.S. constitutional case law, which provides substantial guidance on how to interpret and apply them.
Rather than forthrightly oppose Article 22 because they are against abortion due to their religious beliefs, Article 22’s opponents try to create confusion with delusive arguments they hope will lead to “no” votes.
They fault Article 22 because it is not specific to abortion, but the article also protects the freedom to make other choices related to reproduction, like contraception.
They claim “personal reproductive autonomy” is vague, even though taken together the words straightforwardly mean the freedom to make decisions about whether and when to have children and the use of one’s person in that process.
They assert that Article 22 permits abortion at later stages of pregnancy, but abortions beyond 21 weeks of pregnancy are rare. And, in making their argument, they necessarily demonstrate their belief that the state has a compelling interest in regulating abortions at those later stages. When the state has a compelling interest, Article 22 allows regulation by the least restrictive means.
They also argue that a man could use his rights under Article 22 to force a woman he impregnates to give birth or not against her will. This argument ignores biology. The man’s person is not and cannot be used to carry and bear children, so these functions aren’t part of his personal reproductive autonomy. It’s the woman who can carry and bear a child, and under Article 22 the man does not control her choice.
The opposition to Article 22 is part of a national attack on reproductive liberty based on particular religious beliefs. Choices related to reproduction should be up to the individual and not imposed by religious groups on those of differing faiths or beliefs. I urge Vermonters to vote yes on Article 22.
