This commentary is by Matthew Strong of Island Pond, executive director of Vermonters for Good Government.
The closing argument supporters of Proposal 5/Article 22 seem to be making is that “women and their doctors” should be the only ones to decide whether or not an abortion should take place, even in the latest stages of pregnancy when the unborn child can survive outside the womb.
But this is a fraudulent sales pitch, as Proposal 5 doesn’t ultimately leave these decisions to women and doctors at all.
As Rep. Anne Pugh, who chaired the House Human Services Committee that shepherded Proposal 5 through the Legislature, admitted, “When rights are in conflict between a man and a woman over whether or not to abort their child), we go to court, and that is the role of the courts to decide, or a judge. … And where historically this country has gone when there are conflicts of rights is we go to court, and we have confidence in the courts’ decisions.”
Proposal 5 means that courts and judges are ultimately empowered to make these decisions, not women and their doctors. And the decision to bring these cases to the courts to decide rests primarily with men, based on their newly created constitutional right to “personal reproductive autonomy” that is equal to a woman’s they would enjoy under Proposal 5/Article 22.
Rep. Maxine Grad, who chairs the House Judiciary Committee, admitted in a recent op-ed that, due to the “compelling state interest” exception in Proposal 5/Article 22, “This does not mean our state government would be forbidden to regulate or limit those rights under Article 22. It would be able to do so if the Legislature has an extremely important reason to enact a restriction and the restriction is the only way to achieve that purpose.”
What this means is that under Proposal 5 if politicians decide that there is a “compelling state interest” to end all abortions, and if a court agrees, that’s that. Abortion is illegal in Vermont. So, for all the women out there who want to get politicians out of your uterus, Proposal 5 doesn’t do it! All it does is make room in your uterus for the judiciary branch of government as well as the legislative branch.
If the authors of Proposal 5/Article 22 were really interested in preserving a woman’s absolute right to choose whether or not to have an abortion, absent any interference from politicians or judges and juries or their partners, they would have lifted the language from Vermont’s current abortion protection law, Act 47, verbatim. Act 47 says, “The State of Vermont recognizes the fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion.” Period, end of discussion.
But Proposal 5’s authors made a calculated decision not to do that. They made a rather bizarre decision to exclude any and all language referring to “women,” “pregnancy,” “abortion” or “bodily” autonomy, and create a new, legally ambiguous right to “individual … personal reproductive autonomy” that applies equally to men much to the detriment of women’s rights.
Legally speaking, women’s rights to abortion in Vermont will be more secure under Act 47 if Proposal 5/Article 22 fails at the polls this November. If Proposal 5 passes, it will fling open the doors to every kind of lawsuit questioning the constitutionality of Act 47. The courts will have to wrestle with the question: How can we have a law on the books that gives special consideration to “the individual who becomes pregnant” when the Constitution under Article 22 grants equal rights to the individual who impregnates?
The supreme irony surrounding Proposal 5/Article 22 is that its supporters who are angry at the courts for overturning Roe v. Wade and taking away women’s rights seem poised to vote in favor of a state measure that gives men a new constitutional right to reproductive autonomy on par and potentially in conflict with women’s rights, and entirely empowers the same court system that overturned Roe v. Wade to decide how to interpret that new right. The big winners if Proposal 5 passes are men’s rights and the courts. Go figure.
