Norman Smith: Prop 5/Article 22 is a can of unintended consequences

This commentary is by Norman Smith of Essex Junction, a board member of Vermonters for Good Government. 

This November, Vermonters will be asked to vote on whether to amend our state Constitution to add language creating a right to “personal reproductive autonomy.” 

This amendment is called Proposal 5 (it would add Article 22 to the Vermont Constitution) and is being hyped by politicians and the media as a means of protecting at the state level the abortion rights conferred by Roe v. Wade at the federal level. This is inaccurate and, from a legal standpoint, dangerously so.

Before we get into the details of why Proposal 5 is a legal disaster, here is a bit about where I’m coming from. I received my law degree from the Boston University School of Law in 1980 and clerked for Albert W. Barney Jr. in 1980-81, who was then chief justice of the Vermont Supreme Court. I have much experience with constitutional law and arguing cases before the Vermont Supreme Court.

Proposed Article 22 is one sentence, but it is important to read it verbatim:

“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.”

As you can see for yourself, this language is vague, and the concepts are undefined.

Oddly, for a measure ostensibly to support a woman’s right to an abortion, the proposed Article 22 never mentions “women,” “abortion,” or “pregnancy.” This should raise some serious red flags. What are the implications that a man now has a right to personal reproductive autonomy equal to that of the woman?

That the language fails to define “personal reproductive autonomy” is a major problem. This term is not defined in Vermont or federal law and is so open-ended it could mean many things. If it was meant to protect abortion rights, it should have said so. If it is intended to protect other “reproductive rights,” it should have spelled them out. Because it is so vague, we don’t know what the repercussions of Article 22 will be.

We do not know what medical procedures may become available in the future, or what science may reveal. The proposed amendment could prevent, or at least make very difficult, the Legislature’s adoption of appropriate laws and regulations applying to them. To pass any type of regulation involving “personal reproductive autonomy,” the state must have a “compelling state interest” and the regulation must be “achieved by the least restrictive means.” 

For example, would a right to “reproductive autonomy” allow parents to genetically manipulate their offspring to create “designer babies”? Or abort babies because genetic testing detects possible future traits, such as sexual orientation? Would it allow human cloning for reproductive purposes? Will the proposed amendment open the door to a modern-day form of eugenics? 

These are all areas where the Legislature may wish to adopt rules and regulations setting forth standards that may need to be met, or even prohibitions. Would the state have a “compelling state interest” to adopt such regulations? We do not know how the Vermont Supreme Court would rule. The court generally looks at these on a case-by-case basis.

Furthermore, from a social policy standpoint, would a minor girl’s right to “personal reproductive autonomy” be “infringed” if she were prohibited from having sexual relations with her chosen partner who is an adult? Conversely, could her partner be prohibited from having sexual relations with her?

Commercially, would the proposed amendment open the door to legalized trafficking in gestational surrogacy, to selling embryos for fertility procedures, or to creating embryos for medical experimentation?

While you’re considering all those possibilities, consider this too: If the purpose of the proposed amendment is to protect Roe v. Wade abortion rights, it is completely unnecessary. If the U.S. Supreme Court were to overturn Roe v. Wade, that decision would leave to the states the adoption of laws and regulations regarding abortion. In 2019, the Vermont Legislature passed Act 47, which guarantees women’s unlimited access to abortion up to the point of birth. (Unlike the proposed amendment, Act 47 specifically spells this out.) So, we’ve already got the “What if they repeal Roe?” card covered.

Ironically, the proposed amendment could actually undermine the protections for women provided in Act 47, depending upon how a court interprets a man’s right to “personal reproductive autonomy” where it comes into conflict with a woman’s. Why risk this?

From a legal and constitutional standpoint, the proposed amendment fails all tests. It is not clear. It leaves the term “personal reproductive autonomy” undefined. As a result, it does not provide certainty and opens a legal can of worms limited only by the cleverest lawyers’ imaginations and the willingness of deep pocketed activists to fund their lawsuits. I urge my fellow Vermonters to vote no on the proposed Article 22 when you cast your ballots this November.

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