Background

There have been no restrictions on abortion in Vermont since 1972, when the state Supreme Court struck down Vermont’s anti-abortion law. A year later, Roe v. Wade established that states could not categorically prohibit abortions, but could impose restrictions (specifically, after the first trimester). In 2014, the Vermont legislature repealed an old (and by that time federally unconstitutional) statute that had made it a crime to perform an abortion.

In 2019, the General Assembly passed H.57, which with the governor’s signature became the Freedom of Choice Act. It changed nothing in practice, but codified Vermont’s long-standing practice of safe, legal access to reproductive health care, including abortion. Vermont’s policy has long recognized that decisions related to reproductive health care and abortion are deeply personal and private and are best left to the individual and their doctor. As before 2019, private healthcare practitioners in Vermont, including hospitals, are not obligated to participate in any abortion.

With support for Roe eroding In the U.S. Supreme Court and growing concerns about diminishing federal protections, the Vermont Senate introduced the Reproductive Liberty Amendment In 2019, triggering a four-year process to enactment that would enshrine existing protections in the state Constitution.

Facts … and Misinformation

Proposal 5 is the proposed Reproductive Liberty Amendment to the Vermont Constitution. Unfortunately, there is a lot of damaging misinformation floating around, fueled and funded by advocacy groups. Here is what Prop 5 does and does not do.

First and most important, Prop 5 is not the final say on this difficult question. Rather, it’s a bill that would put before the voters of Vermont the following language to be added to our Constitution:

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.”

It’s difficult to change our constitution, as it should be. In this four-year process, Prop 5 passed the legislature in the 2019-2020 biennium and has now passed again during the current 2021–2022 biennium. In the final step, this measure will be placed on the November 2022 ballot for all Vermont voters to decide. I believe this is necessary and wise, and it’s one of the key reasons I voted yes — to leave this important decision to all of us.

Access to safe, legal abortion under the care of a physician has been a right available in Vermont since 1972. While Prop 5 would enshrine this right in our Constitution, it would not change — or expand in any way — Vermont’s medical standards or current practices when it comes to reproductive health care. Hospitals and health care facilities currently have, and will continue to have, the right to develop and enforce their own policies. Here are two examples:

• Prop 5 does not authorize abortions performed days or hours away from birth as described in your letter. So-called “partial birth abortions” were banned by a 2003 federal law and upheld by the Supreme Court in 2007. Abortions later in pregnancy — up to 24 weeks — do happen rarely in Vermont but only when medically necessary (i.e., to save the life of the mother or if the fetus cannot survive outside the womb) and must conform to ethics guidelines at the provider’s hospital.
• All hospitals in Vermont are recipients of federal funding and are therefore must comply with certain federal laws, including the Church Amendments, which protect health care providers’ “rights of conscience” to refuse to participate in providing care that violates their religious or moral convictions — including abortions. This will not change.

Abortion is a wrenching moral issue. It’s a difficult and painful personal decision that I believe should be left between a woman and her doctor. That’s how things stand in Vermont now, and how they will continue to stand if the constitutional amendment is adopted.