Annisa Lamberton: Prop 5/Article 22 is an extreme outlier, disregarding Roe v. Wade

This commentary is by Annisa Lamberton, a resident of Middletown Springs and a spokesperson for Vermonters for Good Government.

As the science behind fetal development becomes more understood — when an unborn human is viable outside the womb, can feel pain, show brainwave activity, or form functioning organs, etc. — it makes sense to take a fresh look at policies surrounding abortion. 

In many states, this knowledge, new since 1973, is culminating in laws that provide more protections for the developing unborn child, such as disallowing abortions after a detectable heartbeat or through partial-birth procedures.

Roe v. Wade attempted to balance the interests of the mother, the unborn child, and the state. In Vermont, however, the Legislature is taking us in the opposite direction with the proposed constitutional amendment Proposal 5 (aka Article 22): an effort, in part, to strip the unborn of any current or future consideration, legal recognition, or protection at any point up to birth, all the while leaving enhanced safety and health regulations to protect women in its wake.

Although advocates of Proposal 5 often cite respect for Roe v. Wade as a rallying cry, what they are calling for is, instead, a radical departure from that Supreme Court precedent. Roe v. Wade, after all, only guarantees a woman's unrestricted right to an abortion throughout the first trimester of pregnancy. Under Roe, restrictions could be placed on second trimester abortions for protection of the mother (but not for recognition/protection of the unborn child until after viability), and outright bans on late-term abortions during the third trimester, with some medical exceptions, are not only permitted — they are the norm.

Most people who consider themselves pro-choice are "Roe v. Wade pro-choice": keep abortion legal in early stages, but with reasonable restrictions and regulations, especially regarding late-term abortions. The same is true across the globe. According to a June 27, 2022, CNN London Bureau article, “Most European Union nations — including those in the G7 — allow abortion with gestation limits, the most common being 12 weeks…”

But the activist group of Vermont pro-abortion campaigners is trying to force voters into a mold where "pro-choice" means no checks on abortion throughout all nine months, right up to the point of birth. Prop 5/Article 22 is an "all or nothing" amendment, leaving Roe moderates cringing at its possibilities.

This is what they've given us with Proposal 5, which states:

"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."

While this language is dubiously vague, there is little dispute that, if ratified, the amendment would mean the state of Vermont will be virtually powerless to follow Roe by enacting any balanced law to protect viable children or enact safety regulations for women. For example, Vermont has no current law protecting against loss of pregnancy due to criminal abuse, and under Prop 5/Article 22, no such law would be considered. Fetal homicide laws or enhanced penalties exist in 46 states. Vermont is an extreme outlier.

Additionally, a mother could terminate the life of a healthy and viable eight-and-a-half-month-old unborn daughter because of race or a partner’s demand for a boy, and the state of Vermont could not "deny or infringe" this eugenic act. The impossibility of adding these lacking protections was confirmed in testimony during a House Committee on Human Services in January of this year.

When asked whether a possible future law declaring that a fetus is a person at 24 weeks gestation, when it could live outside the womb, would be allowed under Article 22/Prop 5, Eleanor Spottswood, Vermont solicitor general said, "The extent that that statute would interfere with a woman's right to reproductive autonomy, or a pregnant person's right to reproductive autonomy, that portion of the bill would not be upheld under Prop 5."

You can watch the exchange where this quote happened here, beginning at 33:40. She makes it clear that future attempts to regulate abortion, at any level, would be ruled null and void once they traverse the court system.

"That is something Proposal 5 is designed to stop you from doing," Spottswood told the committee.

Again, this goes far beyond Roe v. Wade, and it does not reflect where most Vermonters stand. Proposal 5 advocates' constant cloaking of Proposal 5 in the rhetoric of "preserving Roe v. Wade" at the state level is a misleading means to an overreaching end.

If Vermonters want to protect the precedents set by Roe v. Wade with state law or even a state constitutional amendment, the language and intent of any such legislation should clearly reflect the balance and legal precedents of Roe v. Wade. Proposal 5 is designed to disregard it to the extreme.