This is one of those stories that keeps coming around. Vermont proposition 5 added article 22 to the State Constitution. Voters overwhelmingly approved what was billed as an abortion protection amendment, but it doesn’t say that.
This is my fourth bite at this apple in 2022 and still tastes lousy, but it’s an issue that requires our continued attention.
Proposition 5, approved by 77% of voters, most of whom have no idea what it really means, enshrines article 22 into the State Constitution.
Sec. 2. 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.
As noted here, if some judge declares the unborn a person (giving them individual rights), article 22 bans abortion in Vermont. That’s not too far-fetched an idea, but the ‘abort them all lobby’ went with this version after fearing trip-wires with previous language.
Did they overthink it?
I’ve pondered the problems here, here, and here, but let’s revisit them since it is not just a Green Mountain State Right to choose to or to not reproduce.
- [W]hat if a minor wants to get pregnant? Having survived the “right” to abortion and achieved an age where reproduction is possible, are they not entitled to their own reproductive freedom?
- Even prefaced as referring to reproductive freedom, a talented lawyer could leverage it to mean anything, including a constitutional right to refuse the latest vaccine if it might in some way infringe on that right.
- [I]f you are free to choose your life course or the process or reproduction, then who is to say that whether pregnant now or in the future, you could not make the case that something the government wanted or did is an infringement upon that right (measured using the least restrictive means)?
- Reproduction is not possible without both sperm and eggs. And the freedom and dignity to reproduce could encompass more than those who lay claim to a womb or external forces that infringe on that right.
- Does Sec. 2 Article 22 create a constitutional right to statutory rape, assuming consent? (as in, is statutory rape law abrogated by the act of consent?).
Vermont Parents! Did you consider any of this before you voted for the new Constitutional amendment? Did anyone aside from me try to warn you (and I doubt you were reading GraniteGrok)?
I can see Libs being okay with the first and last (underage sex in both cases) but not the three in between, which is why this could be a problem that people recognized but couldn’t put into words.
Even after they tweaked the language passed by the legislature, about 75% of Vermont votes either didn’t understand Prop 5 or sort of, kind of, thought they understood -meaning probably not.
In the end, 77% voted for it, and based on these numbers, 2% of them were certain, but as we’ve pointed out (I think), they were just hoping it meant what they wanted it to mean, but the word salad gymnasts could wreck it all with the swing of a gavel.
I guess what I’m saying is, why so coy?
If you wanted to make abortion a right, you should have just said, “abortion is a protected right in the state of Vermont.” Full stop. That’s your goal. Conception to birth abortion. It’s a simple thing, really.
The fact that you didn’t say that says that such an amendment would have failed, even in deep blue Vermont. The sort of foolishness that arises when you fool around with the language to hide your true intentions. And it is a problem you can’t fix with legislation because the Constitution would invalidate any law that infringes on whatever the hell any court on any day decides this article means.
In other words, Vermont did not protect abortion rights. They did something, but what it is remains to be seen, and it could be the opposite of what they advertised.
Or maybe I’m overthinking it?