The Reproductive Liberty Amendment, as seen through the eyes of a lawyer

The Reproductive Liberty Amendment, as seen through the eyes of a lawyer

To understand why objections to Proposal 5/Article 22 are unfounded, one has to delve into some foundational principles of our legal system. These include the question of how statutory rights differ from constitutional rights and how state laws differ from federal laws.

HALIFAX — I recently heard some of the objections to Proposal 5/Article 22. If it passes in November, this ballot measure will amend the Vermont Constitution to explicitly protect reproductive freedom, which necessarily includes abortion.

Here's my attempt to respond to those objections, based on my professional experience studying and practicing law and informed by my personal experience wrestling with the weight of that freedom after two contraception failures, a topic I hope to tackle in another piece.

The thrust of the objections I've seen is that (1) there is no need to amend the constitution since Vermont law already unequivocally protects the right to abortion, (2) the term “personal reproductive autonomy” is dangerously vague, and (3) the amendment wrongfully invites the state to control women's bodies if it has a “compelling interest.”

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To understand why these objections are unfounded, one has to delve into some foundational principles of our legal system. These include the question of how statutory rights differ from constitutional rights and how state laws differ from federal laws.

Statutes are passed, amended, or repealed by majority blocks of legislators. While Vermont has a reputation as a liberal state, anyone who spends time in my corner of the county knows it's not a political monolith. With Roe v. Wade struck down, there are no longer any constitutional guardrails to prevent the passage of restrictive amendments or an outright abortion ban by a future set of conservative legislators.

Constitutional amendments, by contrast, must be passed by successive legislative sessions and then approved by the people. That huge undertaking is much harder to achieve, requires broader support, and is thus much harder to undo.

Here's another difference.

Neither a state legislature nor Congress has the power to declare that something is a “fundamental” right. Fundamental rights are expressly identified in constitutions or found through the judicial interpretation of those documents.

By striking down Roe, the Supreme Court ruled that abortion is not a fundamental right under the federal Constitution. The Vermont statute's reference to and protection of a “fundamental right” to abortion is now unmoored from any recognized right; the foundation for the law has been cracked.

Article 22 remedies that by anchoring the statute to a fundamental right expressly recognized in our state Constitution.

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But just as the statute needs a constitutional foundation, the constitutional amendment needs the statute.

Constitutional rights aren't self-executing; they need statutes in order for the rights to be enforced lest they become empty promises.

Constitutional rights aren't absolute or unconditional; even fundamental rights require some regulation, lest we lose the essence of an ordered democracy.

The path to Roe's undoing was paved by state after state testing the outer limits of those propositions by passing ever-more-restrictive laws regulating abortion and by the Supreme Court's decision about how to analyze the constitutionality of those regulations.

Among the laws that were passed were ones that required a woman to have her husband's consent, that imposed waiting periods, that required women to submit to counseling about alternatives, that required clinic halls to be particular widths, that required providers to have hospital admission rights, and on and on. Each of these regulations was challenged in court as violating the constitutional right to abortion.

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Before a court can get to the merits of this kind of legal challenge, however, it must first decide how it's going to analyze the competing interests - the state's interest versus the individual's interest.

There are two critical levels of scrutiny or tests that courts apply when deciding constitutional questions, and here's the rub: The choice of test can be outcome determinative. That means that the manner in which the issue is analyzed tends to dictate the results of the analysis.

The vast majority of laws are subjected to “rational basis” scrutiny. When applying this test, a court asks whether the law is “rationally related” to a legitimate state interest. That's a really low bar. It's rare for a law to fail this test.

A minority of laws are subjected to “strict scrutiny.” This is the test courts apply when the state seeks to regulate one of the few recognized fundamental rights - like the right to marry, to vote, or to travel across state lines.

When applying this test, a court asks whether the state has a “compelling interest” in regulating the issue and whether the regulation advances that interest using the “least restrictive” means possible. It's rare for a law to survive this test.

Back to the laws passed in the wake of Roe. Remember the statute that proposed that a husband's consent would be necessary for a married woman to get an abortion? That Pennsylvania statute was challenged in a 1992 case, Planned Parenthood v. Casey. Before getting to the merits of the constitutional question, the Supreme Court had to decide which level of scrutiny to apply.

The majority in Roe had applied strict scrutiny in its own analysis of the Texas law at issue, while the dissent had argued that it should be subject to rational basis review. In Casey, the court rejected strict scrutiny and adopted what became known as the “undue burden” test.

Applying that test, the court decided that requiring one's husband's consent unduly burdened the right to choose but it upheld all the other restrictions the Pennsylvania legislature had adopted. (Readers might be interested to learn that Supreme Court Associate Justice Samuel Alito sat on the lower appellate panel at the time and he argued that the requirement for a husband's consent should be upheld.)

By adopting the undue burden test, the court flung open the door to a labyrinth of traps, hurdles, and land mines that women have had to navigate to exercise their right to get an abortion.

Each restriction could be analyzed in a vacuum with respect to whether it unduly burdened the right without regard to its cumulative effect.

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This is why the proposed Vermont amendment declares that the right to reproductive autonomy “shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.”

In this way, the amendment should prevent a state or federal court from reinvigorating the arbitrary and vulnerable “undue burden” test. Any law that regulates reproductive freedom would be subject to strict scrutiny - the test that most fiercely protects individual rights.

This level of scrutiny would not, however, mean that abortion would be a free-for-all any more than it is now. In Roe, the Supreme Court subjected the Texas law at issue to strict scrutiny and held that the state's interest in protecting life became compelling over the course of the pregnancy - that's how we ended up with the trimester rules.

Although that construct has lots of problems medically and legally, speaking for myself, I did feel like there came a point in my pregnancy when it stopped being my story about being pregnant and it started feeling like it was my baby's story about being born.

If the ballot measure passes, a reviewing court might similarly rule that some kinds of restrictions or prohibitions (with health-sensitive exemptions) are the least restrictive means for the state to advance its compelling interest in protecting life.

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A couple of final things bear mention.

First, the objection that the language is dangerously vague is essentially an objection to constitutional language in general. Constitutions speak in broad, sweeping, undefined terms that are ultimately subject to judicial interpretation - think “liberty,” “due process,” “religion,” “freedom of the press,” “freedom of speech.” These terms aren't defined, and all of these things are subject to regulation.

Second, ours is a federalist society with dual sovereignty. Each state retains certain powers to govern within its boundaries and has ceded other authority to the federal government.

State laws can be different from or more protective of individual rights than federal laws, but if state laws conflict with federal law, the federal law prevails. That's what the Supremacy Clause in the federal Constitution is all about.

If Congress were to pass a federal abortion ban or otherwise regulate or restrict reproductive measures - and, if that law were upheld as within Congress's authority to enact and if Vermont's laws were deemed to be in conflict with the federal law - then the Vermont statute and constitutional provision would be invalidated.

Vermont isn't an island. What's happening at the national level can affect what happens here.

And what is happening at the national level? For many on the most conservative right, eliminating the right to abortion is just one step toward establishing full personhood for fetuses and embryos.

By protecting reproductive freedom in general rather than just abortion, the Vermont Constitution ensures that things like contraception (including the kind that makes the uterus an inhospitable place for an embryo to attach) and fertility treatments (which involve discarding embryos) are protected while precluding the appalling result that a miscarriage could be the subject of criminal investigation.

By the same token, what happens here has the power to inform, if not affect, what happens elsewhere.

Kansas voters overwhelmingly rejected a constitutional ban on abortion. Hopefully, Vermont will adopt a constitutional protection for reproductive freedom by similar margins.These popular decisions, state by state, carry weight.

From where I sit, the proposed amendment is an important bulwark against a rightward, religious shift in all of these respects.

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