Vermonters will vote on adding abortion rights to the Constitution this fall. What would Prop 5 do?

A constitutional amendment guaranteeing the right to an abortion recently passed the Vermont House of Representatives. This hour, we’ll discuss what’s in Prop 5 — Vermont's Reproductive Liberty Amendment — and hear how it compares with other states’ efforts to protect or curtail abortion access.

VPR’s Mikaela Lefrak spoke with Lisa Holmes—an associate professor of political science at the University of Vermont specializing in American judicial politics, constitutional law, and gender and law—about Prop 5, which will go before voters in November. Their conversation has been edited and condensed for clarity.

Mikaela Lefrak: I want to start by playing a statement by Rep. Anne Pugh. She's been one of the main drivers of this amendment for the past few years. Here she is describing its scope on the House floor on Tuesday [Feb. 8]:

“The proposal for Article 22 of the Constitution is one sentence. ‘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’ One sentence.”

One sentence that contains a lot in it. So Lisa, tell us about what that one sentence would do, if it does indeed become part of the Vermont Constitution?

Lisa Holmes: What that one sentence would do is make it very difficult for the state of Vermont to restrict reproductive freedom within the state. And that last part of the proposed amendment, the compelling interest achieved in the least restrictive way, is mirroring legal language that's used that limits severely the government's ability to restrict the most fundamental rights that we have.

So how are reproductive rights like abortion and contraceptive access protected already by the federal government?

The biggest protection is through the Supreme Court decisions that emanated out of Roe v. Wade, in terms of interpreting language in the U.S. Constitution as providing a right to access to abortion.

I think it's quite clear that a key reason why Vermont and other states are reconsidering their laws as they touch on reproductive freedom is because of changes on the contemporary U.S. Supreme Court, and what might happen moving forward to that line of cases that come out of the Roe v. Wade decision in the 1970s.

More from VPR: Proposed constitutional amendment protecting 'reproductive liberty' heads to Vt. voters

I want to get to those contemporary examples in just a moment. But first, let's dive a bit more into Roe v. Wade, as you mentioned. It's been around for nearly 50 years. And I'm curious, is it still as strong as it was in 1973, when it was first enacted? Or has the Supreme Court changed or weakened any of its protections?

The U.S. Supreme Court has chipped away the right to abortion that the court decided on way back in 1973. What's happened over the decades since the 1970s, as the Supreme Court has become more conservative, is that they've allowed more latitude for state governments to limit access to abortion without allowing states to completely ban abortion.

So that's one of the reasons then why legislators in Vermont feel it's important to protect Vermonters reproductive liberty, because there is that latitude, state by state to make their own choices around abortion?

Yes, and I think what's also happening is that everyone is anticipating what the U.S. Supreme Court is going to do in their current abortion case, the Dobbs v. Jackson Women's Health Organization case that the Supreme Court heard oral arguments on just a couple of months ago.

We don't know what the Supreme Court is going to do with the Constitutional right to abortion in that case. But it seems pretty clear that the contemporary U.S. Supreme Court, with the new appointees placed by previous President Donald Trump, is primed to even more seriously limit abortion rights or even potentially overturn the Roe v. Wade decision, and the Planned Parenthood v. Casey decision, which would then allow states pretty much complete autonomy over deciding abortion—in terms of whether to allow it, whether to ban it completely, or something in between, across all of the different states.

You note this very particular moment that we're in right now, where the court could make a decision that could completely change the Roe v. Wade precedent. What is different about this Supreme Court specifically, that would lead to such a major change?

There are two things that are most significant to point to. One is probably more apparent than the other—that's ideology. The Supreme Court has become increasingly conservative in recent decades. And of course, we saw that most recently when liberal Supreme Court Justice Ruth Bader Ginsburg was replaced by conservative Justice Amy Coney Barrett.

But I think there's a second thing that is very relevant here, and it has to do with the individual justices’ attitudes towards overturning precedent, which, in its own way, is tied into their judicial philosophy. Not so much their ideology, but their willingness to change the interpretation of the U.S. Constitution over time. So, it’s not just enough to have five or more justices not like the Roe v. Wade decision. They also have to be willing to overturn it. And that's what we're waiting to see.

Here in Vermont, it seems like a number of the lawmakers who are opposed to Prop 5 say that in part, it's because they don't want to see a change as permanent as a constitutional amendment. That it would be very, very hard to change the Constitution again, if Vermonters opinions on abortion and reproductive rights shift in the future. Can you talk a bit about how one would potentially repeal an amendment, if this does pass and then a couple years down the road, Vermonters decide, no, this is not what we want anymore?

What's particularly noteworthy about Vermont is that our state Constitution is unusually difficult to amend. So, what that means is that, if this amendment goes through, and voters in the state approve it in the fall, it would be very difficult and also time consuming to undo that. It's not as simple as the U.S. Supreme Court deciding that they want to overturn Roe v. Wade. Here in Vermont, we would have to adhere to the protocols and our state Constitution, about amending the Constitution, to undo Prop 5.

I think it's worth diving into what that process is like. How do you amend the Constitution here? Because with Prop5, it's been a long road to get where it is today. It was first introduced nearly three years ago. And here we are now, still waiting months for it to go on the ballot for voters to decide. What does that process look like?

The process of amending the Constitution here in Vermont, as it is with every constitution, is dictated within the Constitution itself. And it is by design that our Constitution is unusually difficult to amend.

Any constitutional amendment is initiated in the state Senate. But we have what's called a time lock in our Constitution, which indicates that the state Senate can only even consider constitutional amendments once every four years. So, it's got to go through the state legislature that first time with a supermajority in the state Senate.

But then our Constitution also requires that it be passed by a simple majority in the General Assembly, in the next session, which is what has happened recently here in Vermont. And then, it has to go to the voters, who decide by a simple majority to amend the Constitution in this way.

So, our Constitution is unusually difficult in two ways. One are these time-bound provisions within the Constitution. And the second reason is just all of these different procedural hurdles, having it go through a supermajority of the Senate, for example, and having it approved, ultimately, by the voters of the state.

And as I indicated, this is all by design. None of this is accidental. And what's also interesting in Vermont, is that while our Constitution is unusually onerous and difficult to amend, it actually used to be even harder to amend. Because that time lock is currently four years. It used to be a decade, where the state legislature could only consider constitutional amendments once every 10 years.

So, in the 1970s, Vermont made it a bit easier to amend the Constitution. But we are still definitely — among the 50 states — we are still definitely on the side of, our Constitution is unusually difficult, and time-intensive to amend.

Listen to the full interview to hear why Vermont lawmakers also pursued a law on reproductive rights, in addition to the amendment, and to hear from lawmakers who say they and their constituents oppose the constitutional amendment.

Broadcast live on Friday, Feb. 11, 2022 at noon.

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