Vermont may enshrine abortion access in its constitution. But what if Congress bans it?

People gather in Montpelier on Friday, June 24 to protest after the U.S. Supreme Court overturned Roe v. Wade. Photo by Lia Chien/VTDigger

Updated at 7:42 p.m.

On Nov. 8, Vermont voters will decide whether to add one sentence to the state’s constitution.

That sentence — the Reproductive Liberty Amendment, also known as Proposal 5 — is intended to enshrine the right to an abortion into the state’s constitution. It reads:

“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.”

That amendment has been in the works since 2019, and has been passed twice by both houses of the Legislature. But in the wake of the U.S. Supreme Court’s decision last week to overturn Roe v. Wade, it has taken on a new urgency for many Vermonters concerned that their right to have an abortion could be taken away. 

Under current Vermont law, the amendment, often referred to as Prop 5, would be legally redundant. A state law, also passed in 2019, affirms “the fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion.”

Even before that law was enacted, Vermont had no legal restrictions on abortion, meaning that patients of any age were free to seek an abortion, and did not have to ask permission from or inform others of their choice.

But the amendment would protect against the possibility that a future iteration of the Vermont Legislature could attempt to pass laws restricting abortion. 

“Basically, it’s designed to deal with the contingency of right-to-life legislation being passed by the Vermont Legislature at some point in the future,” said Peter Teachout, a professor of constitutional law at Vermont Law School. 

Prop 5 would also have symbolic weight, he said: It represents a way to enshrine the state’s values, as well as provide a model to other states trying to protect residents’ reproductive rights.

But state laws and state constitutions are subservient to federal laws. And if Congress passed a law prohibiting abortion nationwide, Teachout said, the Vermont Constitution would do nothing to prevent it from taking effect. 

“As far as protecting against federal legislation banning abortion, (Prop 5) is like a house of straw,” Teachout said. “It will not do that.”

Many Republicans have made no secret of their desire to ban abortions nationwide. And with Roe v. Wade struck down and the prospect of a Republican-controlled Congress on the horizon, such legislation appears more likely than it has in decades. 

But progressive prosecutors will likely be reluctant to enforce such a ban. Already, some in conservative states have publicly refused to enforce state-level abortion bans. 

In Vermont, both Democratic candidates for attorney general affirmed their support for reproductive rights in the state, although they declined to say explicitly whether they would enforce a federal ban. 

“I think we need to be thinking creatively and with boldness on all opportunities to make sure that our rights are protected, that our values here in Vermont are protected,” said Charity Clark, a former chief of staff to the attorney general who is now running for the top job in that office. “And I certainly as attorney general would do everything, everything in my power to ensure that.”

Rory Thibault, the Washington County state’s attorney and Clark’s opponent in the Democratic primary, was also vague on the question of enforcing a ban. 

"The rule of law is critically important,” he said. “And yet, I think there are many ways in which to legally, ethically and creatively challenge something that is so contrary to our values.”

He mentioned the possibility of challenging hypothetical federal abortion restrictions by citing the Constitution’s 10th Amendment, which limits federal authority over individual states. 

The Supreme Court’s decision last week drew widespread condemnation from Vermont’s federal lawmakers, all of whom have said they support abolishing or suspending the filibuster — a political manuever to block legislation in the Senate — in order to clear the way for a vote enshrining abortion rights into federal law.

In May, after the Supreme Court’s draft opinion for overturning Roe v. Wade leaked, U.S. Sen. Patrick Leahy said he would support bypassing the filibuster to gain approval of abortion rights. 

“That's an easy thing to say,” he said. “The doing it will be far, far more difficult.”

“If Republicans can end the filibuster to install right-wing judges to overturn Roe v. Wade, Democrats can and must end the filibuster, codify Roe v. Wade, and make abortion legal and safe,” U.S. Sen. Bernie Sanders said in a statement Friday. 

“We need to take Mitch McConnell and his Senate Republican colleagues at their word when they say they'll push to pass a nationwide ban on abortion if they regain control of the Senate,” Rep. Peter Welch said in an emailed statement. “This would be a catastrophe and why it’s so critical that Democrats maintain a majority in the House and Senate after the midterm elections.”

Asked if federal legislation could prevent Americans from traveling abroad to obtain an abortion, Teachout, the law professor, said it seemed unlikely, although any such legislation was still “quite hypothetical.”

The simplest reason, Teachout said in a follow-up email, is that the U.S. does not have criminal jurisdiction in Canada. 

He cited instances of gay Americans traveling to Canada to get married before it was legal in every U.S. state. 

Most state abortion bans—and, most likely, any potential federal ban— “make it criminal to perform abortions but not to obtain one,” he said. “But if abortions are legal in Canada, the U.S. has no jurisdiction over the doctors that perform abortions there or the citizens, even U.S. citizens, who obtain them there.”

Shaun Robinson contributed reporting.

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Peter D'Auria

About Peter

Peter D’Auria covers education for VTDigger. Prior to moving to Vermont, he worked for The Jersey Journal, The Chilkat Valley News and Willamette Week. He is originally from Portland, Oregon.

Email: [email protected]

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