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Law scholar on Prop 5, which would enshrine reproductive rights in Vt. Constitution

An abortion-rights activist argues with anti-abortion-rights protesters outside the U.S. Supreme Court on Tuesday.
Eman Mohammed
An abortion-rights activist argues with anti-abortion-rights protesters outside the U.S. Supreme Court.

Now that the Supreme Court has overturned Roe v. Wade, abortion access will be up to the states. Here in Vermont, abortion has been legal for decades and protected by law for several years — so the procedure will remain accessible.

And a proposed amendment would enshrine reproductive health rights into the state constitution. Proposition 5 has been moving through the Vermont Legislature for several years, and will be on the ballot this November.

Peter Teachout, a constitutional law scholar at Vermont Law School, advised state lawmakers while they drafted Prop 5.

He spoke with Vermont Public's Grace Benninghoff about the proposed amendment, and the shifting legal landscape of abortion. Their conversation below has been edited and condensed for clarity.

Grace Benninghoff: This is a really historic day — but not altogether surprising, given the draft Supreme Court opinion that leaked in May. How large of a shift is this ruling, in terms of reversing precedent and giving states the power to decide abortion policy?

A man smiles for the camera.
Courtesy
Peter Teachout

Peter Teachout: Well, I have been teaching constitutional law here at Vermont Law School now for almost 50 years. And in the course of my career, I can't think of another decision that the Supreme Court has made when it actually cut back on the protection of basic rights and liberties. This is a profoundly important decision in and of itself. But it also is an important decision because of what it may portend for other decisions of the same court by the current court.

How does this decision impact Vermont and our neighboring states?

Vermont, by statute, currently protects a woman's right to choose all the way through her pregnancy. This decision does not have an immediate impact on the right to choose. In Vermont, even the conservative justices on the court go out of their way to make a big deal out of this idea that people have deeply differing views about abortion. And one thrust of this opinion is to say each state, and the people in each state, ought to be able to decide where they come down on making that decision.

Here in Vermont, abortion has been protected by law for quite some time. But if voters approved Prop 5, we'll become the first state to pass an amendment enshrining reproductive rights into the state Constitution. Why is that important?

Well, I think it might be helpful just to step back and read the language of Proposition 5: "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." Very short amendment. But the basic core thrust of it is to preserve a woman's right to choose, as it was protected under Roe V. Wade, in anticipation that the Supreme Court might hand down the decision that it handed down today.

More from Vermont Public: The Supreme Court overturned Roe v. Wade. What it means for Vermonters

But it also has symbolic significance nationally. It's a way of saying, "We stand for the protection of women's rights. We stand for the protection of reproductive rights." Vermont, taking the lead with respect to Proposition 5, provides a kind of model that other states might possibly want to follow.

When we're discussing the language in Prop 5 — which, as we talked about before, you had a role in drafting — what is the significance of "reproductive rights" as a phrase? And why isn't abortion specifically referenced?

Well, that's a good question. And it's been the subject of some debate between the people who support Proposition 5 and those that oppose Proposition 5. Clearly, it leaves a little bit of latitude to courts, the Vermont Supreme Court, in the future to determine exactly what is embraced by "personal reproductive autonomy" and what is not. It clearly embraces the core right to choose whether to terminate a pregnancy or to carry a pregnancy through to term. But it might also likely include, for example, the right to use or not to use contraceptives. Whether it includes some other rights, like the rights to in vitro fertilization, other rights, is is not entirely clear. And the Vermont courts will be left to decide these issues.

It's an issue because under Vermont law currently, not only does a woman have a right to make this choice to terminate a pregnancy or to continue it through to term, but if she decides she wants to have an abortion under Vermont law, currently, a woman who cannot afford to have an abortion has a right to have the state pay for it. The Supreme Court of the United States has held simply because you have a right does not mean that you have a right to have the state or the government pay for your exercise of that right. So the Supreme Court of Vermont might say, "Yes, you have a right and it extends to a number of decisions affecting your reproductive autonomy. But it doesn't necessarily include a right to have the state pay for those procedures if you can't afford them yourself."

There is no question in American constitutional law that is fully resolved simply by the text of the Constitution, or the text of a particular amendment. Almost every provision in the Constitution requires thoughtful, responsible interpretation and application by the courts.

What would happen to Vermont's abortion protections if Congress were to pass policies outlawing the procedure?

That is the interesting question. In constitutional law, a duly adopted federal statute is supreme over a state law and over a state constitutional provision. That's the Supremacy Clause.

Proposition 5 is primarily aimed at staking out a position on the abortion issue. It is aimed at protecting Vermonters from state legislation that might erode the woman's right to choose, and it would have that effect. But if Congress passes a law banning abortion throughout the United States, that federal law would trump the provisions in Prop 5 if they're added to our Constitution — and Proposition 5 would not be protective of a woman's right in that case.

Have questions, comments or tips? Send us a message or get in touch with Grace Benninghoff @gbenninghoff1.

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