By Maxine Grad
Vermonters will be asked to vote on Proposal 5 (Article 22), the Reproductive Liberty Amendment, on the November 8 ballot. Under Vermont law, decisions related to reproductive autonomy are currently left to the patient and their medical provider. Article 22, a proposed amendment to our state constitution, would not change that.
Still, we need the Reproductive Liberty Amendment. Voting yes on Proposal 5 (Article 22) will enshrine a fundamental right to choose or refuse contraception, sterilization and abortion. It also will safeguard the right to become pregnant and protect access to reproductive care if medically necessary.
If Proposal 5 (Article 22) does not pass, a future legislature or state government entity could pass laws or create rules that restrict the reproductive choices that Vermonters have relied on since the early 1970s. These new laws or regulations could be challenged in court, but a court may give more deference to the government’s position if Article 22 is not in the state constitution. Without Article 22, courts would be more likely to uphold laws that restrict the rights Vermonters currently possess.
Here is the ballot language in full:
Proposal 5: To see if voters will amend the Vermont constitution by adding Article 22 to read: “Article 22 [Personal reproductive liberty] That an individual’s right to personal 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.”
Vermont’s Reproductive Liberty Amendment echoes a standard well known in U.S. constitutional law. This legal standard, known as “strict scrutiny,” provides the strongest protection against efforts to restrict fundamental constitutional rights — in this case, the constitutional right to personal reproductive autonomy that Article 22 would create.
The amendment declares that the state cannot deny a fundamental right unless it has a compelling interest in doing so. And even if it does have a compelling interest, it may only impinge upon that right using the “least restrictive means” available.
Article 22 would limit the ability of any future Vermont Legislature — no matter what politicians are holding office — to restrict the reproductive rights that Vermonters count on.
After passage of Article 22, if a Vermont Legislature passes a law restricting reproductive rights, that law could be challenged in court. The court would then apply the “strict scrutiny” test. It would ask: Does the new law serve a compelling state interest, meaning, is the interest significant enough to justify infringing on the fundamental right to reproductive autonomy? If the answer is no, the court should block the law from taking effect. The court would also ask whether the law restricting the right is written in the “least restrictive” or narrowest way. If there is another way to address the state interest without infringing on the right, the court would block the law.
MOST EFFECTIVE WAY
It is extremely difficult for a law to overcome the strict scrutiny standard. Enshrining that standard in Article 22 is the most effective way to limit a future state legislature from placing restrictions on reproductive liberty.
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.
How would this work? Currently, Vermont law leaves decisions on whether to have an abortion to patients and their medical providers. Those medical providers do not perform elective abortions after 21 weeks and six days. In cases beyond that gestational age, an ethics panel at the University of Vermont Medical Center (the only provider in the state where abortions can occur at 22 weeks or later) may only approve an abortion in cases involving a severe fetal anomaly, a fetal condition incompatible with life, or a dangerous, possibly life-threatening risk to maternal health.
What if, theoretically, the UVM Medical Center decided to end the use of an ethics panel and offered elective abortions after 22 weeks? If that highly unlikely event were to occur, the Legislature could pass a law reinstating the restrictions that the Vermont medical community currently follows. And a court would find that the state had a compelling reason to impose those restrictions.
Voting “yes” for Prop 5 and Article 22 will ensure that it would be extremely difficult for a future Legislature or government entity to take away Vermonters’ reproductive rights. At the same time, it preserves the Legislature’s ability to impose narrowly tailored restrictions when and if it has a compelling reason to do so.
Rep. Maxine Grad lives in Moretown and represents Waitsfield, Warren, Fayston, Moretown and Duxbury in the Vermont State House until the end of this session. She is chair of the House Judiciary Committee.