Brooke Chmura is a 3L at Vermont Law and Graduate School. She’s covering state ballot measures before Vermont voters in the 2022 midterm elections.
On June 24, 2022, the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that the US Constitution does not protect the right to an abortion. This decision delegated power back to the states to determine whether that right exists for its citizens. When the decision came down, some states already had laws that criminalized abortions, taking effect immediately upon the overruling of Roe v. Wade. Other states took immediate action to codify abortion rights into law. Still other states, or citizens within those states, took action to amend their state constitutions to either protect or eliminate the right. The number of lawsuits and the amount of legislative action spurred by the Dobbs decision is unlike anything I have witnessed in my life.
Abortion is one of those hotly-contested topics that divides not only major political parties, but also families and friends. This coming Thanksgiving, I have no doubt it will be a topic of conversation (or heated debate among uncles), especially in states like Vermont that have related ballot proposals before voters in the midterms. I always think back to an episode of the 1990s TV comedy Seinfeld where Elaine, a woman in her thirties trying to date in New York City, thinks she finds the perfect guy, but it turns out his view on abortion differed from hers, and for that reason alone she ended the relationship. It just goes to show how deeply the issue has permeated our society when it shows up in sitcoms.
Supreme Court Justice Brandeis wrote in 1932 “[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” I doubt Justice Brandeis intended for states to experiment with control over fundamental rights, for those are supposedly federally protected under the Constitution. Nevertheless, now that the right to reproductive freedom is dependent on state law, six states, including Vermont, have proposed constitutional amendments related to the right to reproductive freedom. Some states, like Kentucky and Montana, have proposals that declare there is no constitutional right to abortions. In Vermont however, Proposal 5 seeks to add a constitutional right to personal reproductive autonomy. Whatever your political, religious, or moral beliefs are about abortion, the issue is more than that. The issue is about the freedom to choose what happens to one’s own body. If the women of Vermont value that choice, then they should get out and vote.
Each state has a different method of amending its constitution. In Vermont, the legislature proposes the amendments. Once an amendment is proposed, it is considered in two successive sessions of the General Assembly. In the first session, the amendment must pass by a majority vote in the State House and a 2/3 vote in the State Senate. In the second session, the amendment needs a majority vote from both. If passed in the legislature, the amendment is put to the voters for ratification or ruin. That is where Proposal 5 stands on November 8th.
Proposal 5 is a suggested constitutional amendment that ratifies the right to reproductive freedom for Vermont citizens. It will be on the November 08, 2022, election ballot. The amendment, as it would be added to the constitution, reads:
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.
According to the Vermont Senate, the purpose of the amendment is to ensure equal protection under the law and uphold “the right of all people to health, dignity, independence, and freedom.” (emphasis added).
Leading the fight in favor of the amendment is Vermont for Reproductive Liberty, the University of Vermont Medical Center, the ACLU of Vermont, and the League of Women Voters of Vermont. A group of 20 Vermont religious leaders has signed a letter stating they endorsed the amendment. The letter stated, “[p]rotecting women’s reproductive freedom protects women’s legal right to have control over their own bodies,” which “gives women control and autonomy over every other aspect of their lives. Sadly, when abortion access is limited, those who suffer the most tend to be our most vulnerable—women of low-income and minority communities.”
Opposing the amendment is Vermonters for Good Government. They argue that the amendment is too broad. Without any limiting language in the article, the amendment would allow for late-term abortions throughout the entire nine months. They argue that this is a radical deviation away from Roe v. Wade’s right to an abortion during the first trimester. Additionally, Vermonters for Good Government say that the amendment is not needed because Vermont already has a law that protects the right to abortion. Act 47 of the Vermont state constitution says “[t]he 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.” The broadness of Act 47 is supposedly equivalent to Proposal 5. Thus, what Vermonters for Good Government are really advocating for is to not ratify the right into the constitution, presumably because it will be harder to remove an amendment than repeal a law.
According to an October poll conducted by the University of New Hampshire Survey Center, 75% of Vermont voters say they will vote to adopt the amendment. Additionally, 18% of voters said they would vote against the amendment, and 6% of voters said they were unsure.
If the people of Vermont ratify Proposal 5, there will be significant national impact. If the amendment is adopted, Vermont would be one of the first states to constitutionalize the right to reproductive freedom. Kansas defeated a ballot proposal in August that would have amended its constitution to state there is no right to abortion. If Kansas can do it, so can Vermont. Additionally, California and Michigan each have November 8 ballot proposals similar to Vermont’s to amend their state constitutions to protect an individual’s reproductive freedom. On a local level, Vermonters will not see much of a change. Act 47 has codified the right to reproductive freedom since 2019. However, Vermonters may feel more secure about their right to reproductive freedom if it is ratified in the constitution.
From a legal viewpoint, I think Proposal 5 is beneficial but redundant with Vermont’s existing Act 47. The broadness of the amendment is something voters should take into consideration because it will ratify an absolute right to abortion throughout the entire pregnancy term. However, whether Vermonters adopt Proposal 5 into their constitution or not, they will still be entitled to an equivalent, absolute right of reproductive freedom under Act 47.
Given the political makeup of the state, and the poll statistics, I think Vermonters will adopt Proposal 5. However, the future is in the hands of the voters, so I encourage everyone to go vote on November 8th!
