As Supreme Court deliberates over federal abortion rights, Vermont may enshrine access in constitution

  • Abortion-rights advocates rallied at the Statehouse in May 2019 to protest new abortion restrictions in other states. Photo by Mike Dougherty/VTDigger VTDigger file photograph

Published: 12/2/2021 9:40:11 PM
Modified: 12/2/2021 9:39:49 PM

MONTPELIER — As the U.S. Supreme Court deliberates over a case that could dictate the future of abortion access nationwide, Vermonters in 2022 will determine whether to enshrine the right to contraceptive and abortion services in the state constitution.

The U.S. Supreme Court on Wednesday began hearing arguments for Dobbs v. Jackson Women’s Health Organization, a lawsuit challenging a Mississippi law passed in 2018 that bans abortions past 15 weeks gestation. At the time, proponents of the law said its intent was to put the question of abortion before the highest court to challenge precedent establishing the federal right to obtain an abortion.

Should Mississippi prevail in its case, abortion laws will be left up to individual states. Dozens of states have what are known as trigger laws, which would immediately ban abortion should precedent be overturned.

Vermont, on the other hand, seems likely to be the first state in the nation to guarantee the right to abortion and contraception in its state constitution should the state House, then statewide electorate, approve Proposal 5, or the Reproductive Liberty Amendment.

Amending Vermont’s state constitution is a yearslong process. Lucy Leriche, who is Planned Parenthood Vermont Action Fund’s vice president of public affairs, said in a Wednesday interview that when Prop 5 proponents began the process years ago, some scoffed, questioning whether it was a necessary step to ensure abortion access — particularly in a state like Vermont.

She said regional politics can serve as a sort of bubble because Vermonters are not consistently seeing anti-abortion legislation up for consideration as in other, more conservative states.

But now, with abortion front and center on the national stage, she said “the stars are aligned” for Vermonters to take a once-in-a-generation vote.

In Vermont, she said, “I think there’s been a sense of complacency. I think this is a wake-up call. This is a clarion call to all of us. And I think people are activated and waking up and realizing that this is not something we can take for granted.”

On Wednesday, she described feeling incredulous watching Dobbs v. Jackson Women’s Health Organization being argued in Washington.

“I kind of can’t believe that we’re here after nearly a half a century of this, this right being established and reaffirmed by the U.S. Supreme Court, that we’re actually in a moment where our Constitution has been politicized to the point where we are looking at taking away a fundamental right that people have had for nearly a half a century,” she said.

U.S. Sen. Patrick Leahy, D-Vt., who for two decades was the highest-ranking Democrat in the Senate Judiciary Committee, said in a written statement on Wednesday that “overturning longstanding precedent is something which should be approached with caution.”

“I remain a steadfast supporter of reproductive rights and of Roe v. Wade, which I believe was correctly decided,” he said. “Hopefully, the Court will show the proper amount of deference to its own precedent when rendering its decision in this case.”

Vermont’s independent U.S. Sen. Bernie Sanders and Democratic U.S. Rep. Peter Welch also on Wednesday reaffirmed their support for Roe precedent.

Sanders and Welch have said they support Prop 5. Leahy previously said he does not wish to comment on questions before the Vermont Statehouse.

Vermont in 2019 passed Act 47, which guarantees the right to an abortion and bans the state government from interfering in the process through the length of a pregnancy. But Leriche said such a law can be repealed in one legislative session should the whims of the state Legislature and governor’s office change down the line.

A constitutional amendment, on the other hand, would be difficult to reverse once secured.

That’s why Mary Hahn Beerworth, executive director of the Vermont Right to Life Committee, is concerned by Prop 5, calling it “an abdication of legislative responsibility” should public opinion and political leaning change in the future.

“We already have (Act 47), but that’s something that, if we decide as a state ... at some point to protect that life, we can do it, and we can do it quickly,” she said.

On the case before the Supreme Court, Hahn Beerworth said, “Mississippi can do what Mississippi wants to do, in my opinion,” and she hopes the Supreme Court will decide that individual states can determine their own abortion laws.

The next step for Prop 5 in Vermont is a final vote in the state House — the final legislative hurdle the amendment faces before it goes to the public’s vote in November 2022.




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