This commentary is co-authored by Jennifer McDonald, an attorney and director at the law firm Downs Rachlin Martin in Burlington, and Jared Carter, a faculty member and constitutional law expert at Vermont Law and Graduate School.
With the Nov. 8 election approaching, there is increasing misinformation from opponents of Article 22 — the Reproductive Liberty Amendment.
Most recently in this publication, Christina Nolan, a former U.S. attorney for Vermont and Republican U.S. Senate candidate, wrote a commentary asserting that Article 22 is “extreme” and may “require abortion in Vermont up to the point of delivery, for any reason.”
First, let us reiterate what medical professionals have repeatedly stated: There is no such thing as abortion up to the point of delivery. This is a political argument, not a medical one or legal one.
Second, the idea that Article 22 is extreme and goes beyond Roe is simply incorrect. On its face, Article 22 clearly and expressly reinstates the right that Roe upheld and that (the U.S. Supreme Court decision in the Dobbs case) withdrew — the fundamental right to reproductive liberty.
While Roe grounded that right in a right to privacy in the context of abortion, Article 22 simply codifies what Roe recognized — that human beings have a fundamental right to determine the outcome of their own reproductive lives.
It is also incorrect to say that Article 22 prevents a Vermont court from upholding abortion restrictions. Just like Roe, Article 22 expressly recognizes the potential for restrictions that are “justified by a compelling State interest achieved by the least restrictive means.”
In Roe, the U.S. Supreme Court recognized that, like virtually all fundamental rights, a right to abortion is not absolute and must be balanced against the government’s interests in protecting both a woman’s health and prenatal life. That’s precisely the same balance Article 22 strikes. In other words, just as Roe did, Article 22 requires that before a state imposes limits on the right to reproductive liberty, it must have a sufficient and compelling interest in doing so.
Article 22’s explicit reference to a compelling government interest and narrow tailoring means: 1) personal reproductive autonomy is a fundamental right; and 2) the government must meet the same burden required for limits on other constitutional rights such as free speech. Article 22 simply codifies Roe, including the balancing test that courts already apply to nearly all fundamental rights.
Third, Article 22 does not in any way require or permit abortion up to the point of delivery. Any suggestion of this is ultimately fearmongering. And the experts agree. As Dr. Lauren MacAfee, an obstetrician and gynecologist at the University of Vermont Medical Center, explained to VTDigger in December 2021, “the term ‘abortion up until birth’ is a political term, not a medical term. There is no such thing as an abortion up until birth, and it is irresponsible to imply otherwise.”
More recently, Judy E. Stern, Ph.D., emerita professor of OB-GYN at Geisel School of Medicine at Dartmouth College, told VTDigger: “The term ‘late-term abortion’ was designed to sound ominous, to sound serious, and to confuse people into voting against their own best interests. Let me say it again: There is no such thing as elective late-term abortion.”
Finally, some have argued that Article 22 is redundant — that abortion is already legal in Vermont. However, that could change without a constitutional amendment.
As Vermonters, let’s not fall for the misinformation trap being set by some Article 22 opponents. Article 22 is a common-sense restoration of the fundamental rights Vermonters had before the U.S. Supreme Court struck down those rights in the disastrous Dobbs decision.