Some frequently asked questions about the Reproductive Liberty Amendment

With invented terms that are not ever used by the medical profession, opponents paint pregnant Vermonters as wholly unprincipled people who wait until a pregnancy has come to term, or close to it, to opt out

GUILFORD — In a panel discussion following the recent viewing of Break the Silence: Reproductive and Sexual Health Stories by local filmmaker Willow O'Feral, viewers and panel participants discussed Article 22, a.k.a. the Reproductive Liberty Amendment, a.k.a. Proposal 5.

For so many reasons, it was very helpful to be in a room full of people who wanted to talk about it!

Here's my best attempt to describe the basics of the discussion as a list of frequently asked questions about this ballot question.

* * *

Does the language of Article 22 give something away? Why does it say “unless?”

The amendment as written 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.”

For some, the legal language suggests the amendment is weak. According to legal professionals, it provides the strongest legal protection possible.

Roe v. Wade provided a right that could be chipped away at by the making of precedents and statutes which could be supported by the low legal bar of a “rational basis,” giving us a vivid example of the lowest level of protection of a basic right.

The highest level of legal protection available for a right we wish to ensure into the future is that of “strict scrutiny,” and the language of Article 22 offers this, specifically.

Confoundingly, the phrase beginning with the word “unless” restricts considerations that would eat away at the right by subjecting them to a very high test.

“It's rare for a law to survive this test,” wrote attorney Cara Cheyette [“The Reproductive Liberty Amendment, as seen through the eyes of a lawyer,” Viewpoint, Oct. 10].

According to James Lyall, executive director of the ACLU of Vermont [“Here's what you should know about Vermont's reproductive liberty amendment, VTDigger, Oct. 9], if a law restricting access to birth control, or mandating vasectomies, were introduced, the Legislature would have to demonstrate that the state was compelled to enact it and prove that there was no other means to address the state's interest. “Otherwise, the law would be struck down and our rights would be protected.”

* * *

Is Article 22 vague?

In that the language indicates reproductive autonomy only, it is not vague. Nor is it vague in that it addresses the right to decide whether and when to become pregnant, use temporary or permanent birth control, or seek abortion care.

The language is intended to hold the full range of lived experience for people who've been forced to carry an unwanted pregnancy, people who've been sterilized or administered birth control without their consent, people who've been denied access to birth control, people who've lost someone unneccessarily while medical practitioners worried that providing care that may cross legal lines, and so on.

* * *

Is Article 22 being rushed?

Vermont lawmakers had the prescience in 2017 to introduce this amendment.

It has been debated in both houses of the Legislature twice over the course of two biennia, or two two-year terms. It had to pass both houses, each time. Now it is put before each and every registered Vermont voter.

The process to amend Vermont's Constitution is one of the most challenging in the United States.

No, this hasn't been rushed.

* * *

Is a constitutional amendment necessary?

A law can change relatively quickly. An amendment takes so much more time.

Looking at developments across the country, and looking at the national factors we see entering the debate here in Vermont, the greatest level of protection possible is necessary.

Opposition to Article 22, funded in part by massive funding from the Catholic Church despite the challenge this can represent to its tax-exempt status, is inviting Vermont voters to gaze at a scenario that is statistically nonexistent in Vermont.

With invented terms that are not ever used by the medical profession, they paint pregnant Vermonters as wholly unprincipled people. They paint your neighbor as being inclined to wait until a pregnancy has come to term, or close to it, to opt out of the whole project.

While presenting an extremely rare scenario as the norm, they endanger our precious resource of hard-working health care providers and patients with an air of criminality, to make Vermonters angry.

It's horrible. And it's patently false.

Just as crime reporting drives media ratings while increasing perception that crime is increasing, they wish to trigger constituents to anger.

In Vermont, according to the 2020 Vital Statistics Report by the Vermont Department of Health, 78%, of abortions took place before nine weeks of gestation. More than 92% were completed by 12 weeks, or the end of the first trimester.

Fewer than 1% of abortions happen after 21 weeks, and that is typically due to severe anomalies.

Can you imagine being that incredibly rare case - and those incredibly rare cases do occur - where your life is endangered and your provider washes their hands of caring for you because a religious sect wants to decide that the next step should not be up to either of you?

I pose this question because many view the lack of empathy for the patient - especially when extremely rare and very precarious circumstances present, which can happen in pregnancy through nobody's fault - as deeply disturbing.

Nationally, some religious and political sects are striving to legally and practically restrict access to all abortion under any circumstances. This amendment is necessary, and the moment for it is now.

The majority of Americans are for access to reproductive health care. It's important that the majority stand up and be counted.

Your vote is needed.

Subscribe to the newsletter for weekly updates