“The Legal Reality of Prop 5”
By James McFaul, attorney living in Barnet, who has practiced civil law for 26 years and is admitted to the federal and state courts in Vermont, New Hampshire, Maryland, and the United States Supreme Court.
Reprinted with permission
“Will Article 22 enshrine late-term abortions in the Vermont Constitution?” This has become a key issue in the debate, and supporters of Article 22 have alleged that it will not. Their argument is that, because the UVM Medical Center is currently the only provider of late-term abortions in Vermont, and UVMMC has a policy that it will not perform late-term abortions except in extreme, life-threatening situations, then it follows that late term abortions will not be performed in Vermont. Current medical practice disfavors late term abortions, and that is an adequate safeguard against the procedure in the future. A commentator in Vermont Digger went on to say that “What will be enshrined in our Constitution is that politicians (the Legislature and the governor) will not determine what restrictions should be placed on abortion procedures, but rather that these restrictions will be left– as they are now, and should be– to the hospitals, professional medical organizations, and the Board of Medical Practice[.]” This statement is incorrect, and troubling.
It is incorrect because current custom and practice are not sufficient justification for restricting what is a constitutional liberty right. The point of affording constitutional protection to sensitive liberty issues is often to overcome prevailing practices that burden those liberties. There is no limiting language to the right to abortion in Article 22, which states “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.”
“Personal reproductive autonomy” includes, first and foremost, the right to have an abortion, and there is no limiting language as to when that abortion may be obtained. It does not say “up to 22 weeks,” or “prior to fetal viability.” The right is granted, and it is unlimited. Any attempt to limit it, at any point, would have to pass the “unless justified by a compelling state interest achieved by the least restrictive means” clause. There is no mention of what would constitute a “compelling state interest.” Unlike the Roe v Wade line of cases, there is no mention of the humanity of the child in utero, or the possible interest of the state in protecting the unborn child after the point of viability. This is truly a case of a “deafening silence,” for the legislature could easily have included such language. The issue was raised repeatedly during the various hearings, that this was enshrining abortions up to the moment of delivery. If that was not the intent– as so many people are now asserting– the legislature could easily have said so by including some limiting language. It did not, and that in itself is a clear message concerning the “legislative intent.”
Back to the question of how much weight current medical practice, or the opinions of the UVMMC Ethics Committee, or the current standards set by the Vermont Board of Medical Practice, will carry in meeting the “compelling state interest” test: Zero. None. They would be swept aside by the first lawsuit on behalf of a woman asserting her right to “personal reproductive autonomy,” even at 23 weeks or later. Under Article 22 it will be her constitutional right to do so, and no ethics opinion will stand in the way of that right.
Elsewhere it has been asserted that “The amendment, like most constitutional provisions, only prevents governmental actors from placing restrictions on the individual’s rights.” What?! This is stunningly incorrect. Unless a liberty provision expressly limits its scope to actions by the government, it by definition applies to all actors, public and private (for example, the broad range of anti-discrimination statutes).
Assuming the UVMMC maintains its current policy concerning late-term abortions, what is to stop out-of-state late-term abortion providers from coming to Vermont? Protected by Article 22, it will be very hard to stop, or even regulate, such providers. Late term abortions will be a fundamental liberty right under Article 22, and any attempt to burden that right will have to pass the “strict scrutiny” test. Legal scholars know how difficult a test that is.
A final, but important thought: why are we bashing the legislature and the legislative process? Why we would prefer that unelected, unaccountable private entities like the Board of Medical Practice, or the UVMMC Ethics Committee, determine the extent of abortion rights behind closed doors, rather than our elected representatives through public hearings and debate? Has our confidence in the democratic process sank so low, that we would rather have unelected bodies decide these crucial issues of liberty and the protection of human life?
Additional Legal Opinions:
Christina Nolan, former U.S. Attorney for Vermont
Excerpt from her commentary published October 18th.
“What we should not do is rush to an extreme “solution” in search of a problem that never existed. And that is exactly what Article 22 would do by changing the Vermont Constitution so that Vermonters could never again vote to regulate late-term abortion.”
Robert P. George
McCormick Professor of Jurisprudence, Princeton University. Professor of Politics. Director, James Madison Program. He has served as chairman of the United States Commission on International Religious Freedom (USCIRF), and before that on the President’s Council on Bioethics and as a presidential appointee to the United States Commission on Civil Rights. He has also served as the U.S. member of UNESCO’s World Commission on the Ethics of Scientific Knowledge and Technology (COMEST). He is a former Judicial Fellow at the Supreme Court of the United States, where he received the Justice Tom C. Clark Award. A graduate of Swarthmore College, he holds J.D. and M.T.S. degrees from Harvard University and the degrees of D.Phil., B.C.L., D.C.L., and D.Litt. from Oxford University. He has been a visiting professor at Harvard Law School and is a member of the Council on Foreign Relations.
“Words and phrases, including those used in statutes and constitutional provisions, are properly construed to mean what they were, at the time of ratification, publicly understood to mean. We assume that the framers and ratifiers of the words and phrases intended them in this sense unless they specifically define them to mean something else. People on both sides of the debate over abortion know that “reproductive autonomy” is publicly understood to be a way of referring to an unlimited abortion license, that is, elective abortion permitted through the entire nine months of gestation and pregnancy up to and including the process of birth. That is undoubtedly how this language, would be interpreted by the Vermont courts. In effect, “reproductive autonomy” is a well-known euphemism for licensing the right to kill a human being—a living individual of the species Homo sapiens—at any point and for any reason (and not just to protect maternal life or physical health) until the child is fully delivered. It is understood by everyone, including by activists on both sides of the debate about abortion and unborn human lives, precisely in that way.
One might ask, “does the reference to a compelling State interest and least restrictive means” alter or modify that meaning?” The answer is plainly no. To interpret the interest in prenatal human life as a “compelling State interest” would evacuate the phrase “reproductive autonomy” of its publicly understood meaning. Courts would not interpret “compelling State interest” as doing that unless a definition of “reproductive autonomy” were added that would distinguish the meaning of that phrase in the constitutional provision from its publicly understood meaning in the context of the contemporary debate about abortion and unborn human lives. In other words,
absent an explicit definition of “reproductive autonomy” as not including the right to kill or order the killing of prenatal human beings by elective abortion, Vermont courts would interpret it as including such a right, and would refuse to treat the protection of unborn human lives as
constituting a compelling State interest.“
Norman Smith, Esq.
Norm is a board member of Vermonters For Good Government and practices law in Essex Junction, Vermont. He clerked for Chief Justice Albert W. Barney, Jr.in 1980- 1981. He has argued several cases before the Vermont Supreme Court.
“While the proposed Amendment does not explicitly prohibit restrictions on late term abortions or post-viability abortions, the language of the Amendment is such that any attempt at a restriction would be virtually impossible. Any restriction must have a “compelling state interest.” Act 47 already prohibits any regulation of abortions. If the Legislature were to change its mind and seek to amend or repeal the statute, it would have to come up with a “compelling state interest” to justify the change. The Vermont Supreme Court would have to determine if the Legislature had the “compelling state interest” to justify the change.
Given the legislative history of the Act and of the proposed Amendment, it would be extremely unlikely that the Court would find a “compelling state interest.”
Arguments that late term abortions or post-viability abortions do not happen in Vermont except in extreme circumstances because of the Medical Center’s Ethics Committee do not fly. Nothing prevents an outside entity from coming into Vermont to perform these abortions.”
Rep. Anne Donahue
Anne is a graduate of Georgetown University Law Center, and has been a Vermont state legislator since 2003, and currently is vice-chair of the Health Care Committee and represents Northfield and Berlin. She has been a healthcare policy journalist for 30 years. With her legal background, extensive healthcare policy analysis, and as a member of the legislature, she is uniquely qualified to address the legal reality of Article 22. She is a volunteer spokesperson for VFGG.
I’m sharing this as a personal legal opinion. I’m an inactive member of the bar, not currently practicing, but with a JD and plenty of background in reviewing statutes and constitutionality.
As you know, the “compelling interest” standard is a very high one, but not insurmountable. If the court were to be operating off a blank slate, it would be fairly clear that a reasonable judicial assessment could lead to a conclusion that protection of a viable infant’s life interest is a compelling one for state action. In fact, that is exactly what the Supreme Court found, after extended discussion, in its opinion in Roe v Wade. Of course that court was operating off interpreting the existing US constitution that does not have any direct language regarding reproductive rights, but it would certainly be of guidance to a state court.
But we’re not dealing with a blank slate. In this case, the Vermont Court has significant legislative intent to review, and that would include all of the discussion related to Act 47 as well, since Article 22 was described as explicitly to engrain in the constitution what was codified in Act 47, and to protect “what Vermonters have enjoyed as a right for 50 years.” That legislative history makes it clear through the multiple years of committee discussion and floor debate — and particularly in terms of proposed amendments that were rejected — that the intent was an unlimited right without any intent to exclude third trimester or viable-infant abortions.
The “50 years” (a repeated reference) indicates the absence of any restrictions whatsoever, by choice of the legislature over all of those years. The Beecham decision was clear that the state could, in fact, regulate abortion in some limited ways; what it could not do was to ban them. The door was open for 50 years for the state to express an interest in regulating later term abortions — as permitted by Roe — and chose to not do so. In fact, it is the presence of that “slightly ajar” door is precisely the door that Article 22 is intended to close: the fact that Beecham is not absolute, and the legislative majority wanted to protect against any future legislature acting to place any limitations on any access to any abortion.
In the course of the passage of Act 47, there were multiple amendments that would have limited its scope in some ways. These were not presented as a “compelling state interest,” but merely a desire as a state interest, because they were not attempting to meet a constitutional standard. Every single one was rejected, indicating that the legislature did not find any state interest in any such restrictions.
A future legislature would have to pass legislation that would then come before the judiciary to determine whether it met the compelling interest test. With a legislative history indicating that both regarding Act 47 and in Article 22 there was a determination that there was no state interest involved in the “potential life” [Roe] in the third trimester, it is fairly inconceivable that the legislature, in choosing the inclusion of the “compelling state interest” standard in the language, had any contemplation that this was a compelling interest. Because the discussion was extensive, the legislature could have chosen to exclude viable-infant abortions in Article 22, and deliberately chose not to (in other words, it was not omitted accidentally or unaware of the issue.)
Issues not contemplated and then not included would certainly be open for a broader court evaluation of whether a compelling state interest was involved. Here, the opposite occurred. The legislature rejected any limitations as a state interest at all when the Article (and its precursor, Act 47) was passed; it could hardly argue that future legislation was based on a determination that there was a compelling state interest.
I’ve attached a list of amendments that were rejected, but this one is most directly on point:
ABORTION; PROHIBITED CONDUCT; LIMITATION ON PROSECUTION (a) A health care provider as defined in section 9496 of this title, acting within his or her lawful scope of practice, may perform an abortion when, in the provider’s professional judgment based on the facts of the patient’s case, the patient is within 24 weeks from the commencement of pregnancy, or the fetus is not viable, or the abortion is necessary to preserve the life or physical or mental health of the patient. (b) Any abortion provided by a health care provider that does not meet the criteria established in section (a) of this section shall constitute unprofessional conduct as provided in the relevant provisions of Title 26 and shall subject the health care provider to discipline pursuant to the applicable provisions of that title and of 3 V.S.A. chapter 5.
I do not know the extent to which other legal reviewers looked to the legislative history of Article 22, rather than just to its current language. As I referenced, if standing alone, it would be entirely reasonable to find viable-infant abortions to be a compelling interest. Because legislative history is relevant (as the proponents have pointed out, extensively, regarding other questions) the question of late abortion is essentially foreclosed.
I believe that was the basis of the Solicitor General’s comment, in saying that to the extent it created a barrier to abortion — violating the fundamental purpose of the Article — a statute stating that a fetus is a person at the point of viability would be unconstitutional.
Obviously, we are all speaking about predictions of “likelihood.” It will all be in the hands of the court — which has been a significant concern regarding the many other questions where there is no extensive legislative history. Even regarding late abortions, the court will have the final say, not appealable unless there is some future contradictory action by the federal government or the US Supreme Court on federal constitutional grounds.
List of Act 47(H. 57) Amendments that were rejected:
H. 57 Consideration resumed on House bill, entitled An act relating to preserving the right to abortion Thereupon, the report of the Committee on Judiciary was agreed to. Pending the question, Shall the bill be amended as recommended by the Committee on Human Services, as amended? Rep. Rosenquist of Georgia moved to amend the report of the committee on Human Services, as amended, as follows: JOURNAL OF THE HOUSE 210 First: In Sec. 2, 18 V.S.A. chapter 223, in section 9493 (purpose and policy), by adding a new subsection (c) as follows: (c) The State of Vermont recognizes that a viable human fetus is a person under Vermont law. Second: In Sec. 2, 18 V.S.A. chapter 223, in section 9494 (interference with reproductive choice prohibited), in subsection (a), before “public entity” by striking out the word “A” and inserting in lieu thereof the following: “Notwithstanding subsection 9493(c) of this title, a” Third: In Sec. 2, 18 V.S.A. chapter 223, in section 9497 (abortion; restricting access prohibited) before “public entity shall not” by striking out the word “A” and inserting in lieu thereof the following: “Notwithstanding subsection 9493(c) of this title, a” Pending the question, Shall the report of the Committee on Human Services, as amended, be amended as offered by Rep. Rosenquist of Georgia? Rep. LaClair of Barre Town demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the report of the Committee on Human Services, as amended, be amended as offered by Rep. Rosenquist of Georgia? was decided in the negative. Yeas, 41. Nays, 106.
Pending the question, Shall the bill be amended as recommended by the committee on Human Services, as amended? Reps. Rosenquist of Georgia JOURNAL OF THE HOUSE 212 and Bancroft of Westford moved to amend the report of the committee on Human Services, as amended, as follows: First: In Sec. 2, 18 V.S.A. chapter 223, in subsection 9493(b), after “or to have an abortion”, by inserting the words “pursuant to this chapter” Second: In Sec. 2, 18 V.S.A. chapter 223, by striking out section 9494 (interference with reproductive choice prohibited) in its entirety and inserting in lieu thereof the following: § 9494. ABORTION; PROHIBITED CONDUCT; LIMITATION ON PROSECUTION (a) A health care provider as defined in section 9493 of this title, acting within his or her lawful scope of practice, may perform an abortion when, in the provider’s professional judgment based on the facts of the patient’s case, the patient is within 24 weeks from the commencement of pregnancy, or the fetus is not viable, or in the provider’s reasonable medical judgment, the patient has a condition that so complicates the patient’s pregnancy as to necessitate abortion to avert the patient’s death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function. (b) No person shall perform an abortion that does not meet the criteria established in subsection (a) of this section. A person who violates this subsection shall be imprisoned for up to five years or fined not more than $10,000.00, or both. (c) Any abortion provided by a health care provider that does not meet the criteria established in section (a) of this section shall constitute unprofessional conduct as provided in the relevant provisions of Title 26 and shall subject the health care provider to discipline pursuant to the applicable provisions of that title and of 3 V.S.A. chapter 5. (d) No State or local law enforcement shall prosecute any individual for inducing, performing, or attempting to induce or perform the individual’s own abortion. Third: In Sec. 2, 18 V.S.A. chapter 223, in subdivision 9497(1) after “pregnancy” by inserting the words “prior to 24 weeks from the commencement of the pregnancy” Fourth: In Sec. 2, 18 V.S.A. chapter 223, in subdivision 9497(2) after “pregnancy” by inserting the words “prior to 24 weeks from the commencement of the pregnancy” 213 WEDNESDAY, FEBRUARY 20, 2019 Fifth: In Sec. 2, 18 V.S.A. chapter 223, subdivision 9497(3) after “pregnancy” by inserting the words “prior to 24 weeks from the commencement of the pregnancy” Sixth: In Sec. 2, 18 V.S.A. chapter 223, in subdivision 9497(4) after “pregnancy” by inserting the words “prior to 24 weeks from the commencement of the pregnancy”
H. 57 Consideration resumed on House bill, entitled An act relating to preserving the right to abortion Thereupon, the report of the Committee on Judiciary was agreed to. Pending the question, Shall the bill be amended as recommended by the Committee on Human Services, as amended? Rep. Rosenquist of Georgia moved to amend the report of the committee on Human Services, as amended, as follows: JOURNAL OF THE HOUSE 210 First: In Sec. 2, 18 V.S.A. chapter 223, in section 9493 (purpose and policy), by adding a new subsection (c) as follows: (c) The State of Vermont recognizes that a viable human fetus is a person under Vermont law. Second: In Sec. 2, 18 V.S.A. chapter 223, in section 9494 (interference with reproductive choice prohibited), in subsection (a), before “public entity” by striking out the word “A” and inserting in lieu thereof the following: “Notwithstanding subsection 9493(c) of this title, a” Third: In Sec. 2, 18 V.S.A. chapter 223, in section 9497 (abortion; restricting access prohibited) before “public entity shall not” by striking out the word “A” and inserting in lieu thereof the following: “Notwithstanding subsection 9493(c) of this title, a” Pending the question, Shall the report of the Committee on Human Services, as amended, be amended as offered by Rep. Rosenquist of Georgia? Rep. LaClair of Barre Town demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the report of the Committee on Human Services, as amended, be amended as offered by Rep. Rosenquist of Georgia? was decided in the negative. Yeas, 41. Nays, 106.
Rep. Hashim of Dummerston explained his vote as follows: “Madam Speaker: Creating fetal rights by identifying them as individual people is misguided at best, and subversive at worst. It would be misguided because this concept separates a woman from her fetus as different entities, and this is filled with risks in our legal system that would impede a woman’s right to abortion. The purpose of this bill as it stands is to maintain the status quo of a woman’s right to abortion, not to create impediments to that right.”
Pending third reading of the bill, Rep. Donahue of Northfield moved to amend the bill as follows: First: In Sec. 1 (legislative intent), after the first sentence, by striking out the word “The” and inserting the following: The General Assembly recognizes that the fertilization of a human egg begins the development of a genetically distinct human life, however, it prioritizes an individual’s choice to decide whether to sustain a life in utero prior to and until the time of birth. Therefore, the Second: In Sec. 1 (legislative intent), after the words “safeguard the existing rights to access” by inserting the words “abortion and” Pending the question, Shall the bill be amended as offered by Rep. Donahue of Northfield? Rep. Donahue of Northfield demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the bill be amended as offered by Rep. Donahue of Northfield? was decided in the negative. Yeas, 37. Nays, 108.
Pending third reading of the bill, Rep. McFaun of Barre Town moved to amend the bill as follows: First: In Sec. 2, 18 V.S.A. chapter 223, in subsection 9493(b) (purpose and policy), after “or to have an abortion”, by inserting the words “except as otherwise provided in this chapter” Second: In Sec. 2, 18 V.S.A. chapter 223, in section 9494(a) (interference with reproductive choice prohibited), after “or to obtain an abortion”, by inserting the words “except as otherwise provided in this chapter” Third: In Sec. 2, 18 V.S.A. chapter 223, in subdivision 9497 before “A public entity shall not” by inserting the words “Except as otherwise provided in this chapter,” Fourth: By striking out Sec. 3 in its entirety and inserting in lieu thereof the following: § 9499. ABORTION; PROHIBITED CONDUCT; LIMITATION ON PROSECUTION (a) A health care provider as defined in section 9496 of this title, acting within his or her lawful scope of practice, may perform an abortion when, in the provider’s professional judgment based on the facts of the patient’s case, the patient is within 24 weeks from the commencement of pregnancy, or the fetus is not viable, or the abortion is necessary to preserve the life or physical or mental health of the patient. (b) Any abortion provided by a health care provider that does not meet the criteria established in section (a) of this section shall constitute unprofessional conduct as provided in the relevant provisions of Title 26 and shall subject the health care provider to discipline pursuant to the applicable provisions of that title and of 3 V.S.A. chapter 5. Sec. 4. EFFECTIVE DATE This act shall take effect on passage. Pending the question, Shall the bill be amended as offered by Rep. McFaun of Barre Town? Rep. LaClair of Barre Town demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the bill be amended as offered 269 THURSDAY, FEBRUARY 21, 2019 by Rep. McFaun of Barre Town? was decided in the negative. Yeas, 37. Nays, 106. Rep. Elder of Starksboro explained his vote as follows: “Madam Speaker: This amendment would establish medical providers as the gatekeepers to abortion services. I trust women to make their own decision and then to consult with their chosen provider, their family and their friends as they see fit.”