Your questions about Vermont's 'reproductive liberty' amendment, answered
Since Roe v. Wade was overturned in June, states have been trying to figure out what the future of abortion and reproductive health care will be. Some have passed outright bans, others have relied on old laws, and still others are looking to state constitutions to address the issue.
Vermont lawmakers got out in front of the Supreme Court’s decision. They’ve been working for years on a ballot item to enshrine reproductive liberties in Vermont's Constitution. That effort will appear on the November ballot as Article 22. Here’s what it says:
“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.”
Recently on Vermont Edition, host Connor Cyrus spoke with Sarah McCammon, a correspondent for NPR covering abortion and reproductive rights, Dr. Lauren MacAfee, an OBGYN at the University of Vermont Medical Center in Burlington, and Meg York, an attorney at the South Royalton Legal Clinic and assistant professor at Vermont Law and Graduate School.
They answered listener questions about the legal and medical implications of Article 22. Below is an edited version of their conversation.
Connor Cyrus: We got an email from Norman Smith, a board member for Vermonters for Good Government, a group strongly opposed to Article 22. He writes, “The national [abortion] debate is a red herring. Vermont law already prohibits the government from interfering with the abortion decision.” How important is it for voters and policy makers to keep the national debate in perspective as they make this state-level decision?
Sarah McCammon: In a sense, he has a point. This just shores up, in Vermont’s Constitution, what is already in state law.
It’s kind of a “belt and suspenders” approach, as one advocate described it to me. If the winds were ever to change and Vermont lawmakers were to move in a different direction, a Constitutional amendment would provide another protection for abortion rights.
But I think the biggest impact right now is symbolic. At this moment, on the heels of Roe being overturned, when there is so much attention on states that are banning abortion, this gives Vermont voters a chance to say, if they wish, that is not the direction they want to go.
Connor Cyrus: Vermont state law has protected access to abortion since 2019. And going back to 1972, the state supreme court ruled the state Constitution did not support broad bans on abortion. What would Article 22 actually do for people seeking an abortion or related healthcare in Vermont?
Meg York: Article 22 is not a change from the current legal standard for how and when an individual can seek and obtain an abortion here in Vermont. However, reproductive rights are more secure if they're protected by the Constitution. What Article 22 is designed to do is to foreclose the possibility of anti-choice legislation being passed by the Vermont legislature at some point in the future.
"What Article 22 is designed to do is to foreclose the possibility of anti-choice legislation being passed by the Vermont legislature at some point in the future."Meg York
Connor Cyrus: We had a call from a listener in Bennington who said, “I am worried and have read assertions that there will be effects that are completely unintended. For example, if a man and a woman are married and the woman is pregnant, and the man does not want a child, does he have any rights under this?”
Meg York: This comes down to what is considered “personal reproductive autonomy.” If a man does not want to have a child, that man can choose to have a vasectomy, and that is a personal reproductive right that would be guaranteed under Article 22. It is already currently guaranteed under our state laws.
But this shouldn't be read to say that they can control what someone else chooses to do with their body. We have a lot of history and case law that says that a pregnant person's wishes really override the biological father's ability to determine what that pregnant person does with their body.
So the pregnant individual would be able to choose whether or not to carry that pregnancy to term, whether to terminate the pregnancy, those types of things. And each individual has the capacity to choose how to seek their own contraceptive care, or sterilization, if that's the route that they would like to choose.
Connor Cyrus: Some who oppose this amendment say this could essentially allow abortion up to the moment of birth. A listener emailed us to say, “I got two mailings telling me that Article 22 is for making late-term abortions, right up to the moment of birth part of the Vermont Constitution.” Is this really the purpose of Article 22?
Dr. Lauren MacAfee: The goal of Article 22 is to really enshrine into our Constitution what current practice is happening now and to avoid some of the whims of the legislative sessions. At this time in Vermont, there are not abortions that are taking place in the third trimester. And that practice won’t change with Article 22, if it were to pass. I think it's really important for folks to understand that medical practice is regulated and overseen by not only federal and state laws, but also by the board of medical practice, by individual providers and by hospital and practice policies.
We all kind of work within these constraints to provide the care in an evidence-based and safe fashion to ensure that patients have access to care within the constraints of all of those regulatory pieces.
"At this time in Vermont, there are not abortions that are taking place in the third trimester. And that practice won’t change with Article 22, if it were to pass."Dr. Lauren MacAfee
Connor Cyrus: What can you tell us about some of the statistics when it comes to abortions in Vermont?
Lauren MacAfee: The most recent data we have is from 2020, recently released by the Department of Health:
- There were just over 1,200 abortions that took place in 2020.
- Of those, just over 80% were for Vermonters and just under 20% were out-of-staters.
- Only 3% were minors.
- Well over 90% were in the first trimester, or less than 14 weeks of pregnancy.
- Only 1% were over 21 weeks of pregnancy.
We do see a lot of misinformation when it comes to this term of “late-term abortions,” because that is a social term. It's not a medical term. We think about abortions in the second trimester or later in pregnancy when we're discussing those cases, which again, are extremely rare.
Connor Cyrus: We had a call from a listener who said, “[Article 22 is] so vague, that we're not really going to know what it means until the [Vermont] Supreme Court rules on it. So we're leaving it up to five Supreme Court justices to determine what reproductive autonomy is.”
Meg York: Courts are always charged with interpreting the law. The same is true for our current law. Where we would see something like this arise is if the Vermont Legislature tried to pass a law that in some way limited an individual's access to reproductive health care.
At that point, the court would need to grapple with the definition of reproductive autonomy and whether the restriction was justified by a compelling state interest achieved by the least restrictive means. So that doesn't mean that the Legislature is prohibited from passing any level of restrictions.
Connor Cyrus: The same caller also said that we already have a statue that enshrines late term abortions. They said, “This amendment will make it incredibly difficult to make any kind of changes to that statute.” Can you reiterate where Vermont stands currently on late-term abortions and what this amendment would do?
Meg York: Article 22 does recognize that there are some reasons that people might need abortion care later in their pregnancies, whether those are severe or fatal, lethal anomalies, or whatever the reason is. It ensures that these decisions are made between a pregnant person and their medical provider, and that they're free from governmental interference. So we're not saying that those decisions can be made, but we're saying that the government doesn't have the right to step in and tell people what they can do with their health care.
"It ensures that these decisions are made between a pregnant person and their medical provider, and that they're free from governmental interference."Meg York
Lauren MacAfee: While there may not be specific state regulations on abortion care, at the University of Vermont Medical Center, where I practice, we have a very robust abortion policy that regulates and, to some extent, limits the care that we are able to provide here.
As an example, for any abortion care that is sought after 22 weeks of gestational age, we involve our ethics team and have a robust discussion about whether or not that care can happen at the medical center, or whether or not that's care that would need to be provided out of state. That echoes many other hospitals and clinical practices in Vermont, that have practices that either provide abortion, or will refer out for those cases.
But I want people to understand that the goal of this is to make sure that patients have access to health care services, in very complex situations, because we all know that pregnancy can be very complicated, and that those decisions can be made between the patient and their medical care teams, without interference from legislators or politicians.
Connor Cyrus: When it comes to people making decisions, especially health care providers, there's a question about what Article 22 means for health care providers morally opposed to abortion. Would it mean that health care workers can't opt out of these procedures?
Lauren MacAfee: Absolutely not. The process won't change in that context, and providers and employees will still be able to opt out of care that conflicts with their moral beliefs.
As an example, the UVM Medical Center has a very robust opt out policy which will not change with Article 22. Through this policy, all employees from nurses, physicians and other staff have the opportunity to opt out of participating in procedures or services based on their religious or moral grounds. And this is not limited to abortion care. It can also include things like transplant procedures, blood transfusions, palliative care, among many others.
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