Vermont’s upcoming referendum on reproductive rights is shaping up to be one of the most contested questions on the November ballot, despite public opinion giving its passage high odds.
Well-funded campaigns for and against the passage of Article 22, an amendment that would enshrine reproductive rights in the Vermont Constitution, are now well underway, with lawn signs popping up on lawns across Vermont and volunteers knocking on doors.
The Reproductive Liberty Amendment, as it is called by its proponents, is backed by nearly every high-profile politician in Vermont — including Republican Gov. Phil Scott — and will come before an electorate that overwhelmingly supports access to abortion. It will also likely benefit from a groundswell of concern about maintaining that access following the U.S. Supreme Court’s decision to overturn Roe v. Wade.
But the Vermont for Reproductive Liberty Ballot Committee, which is campaigning for Article 22’s passage, is apparently leaving nothing to chance. Sam Donnelly, its campaign manager, said the group has seven full-time staff and about 25 to 35 volunteers phone banking and knocking on doors. The super PAC backing its efforts last reported having nearly $363,000 cash-on-hand, per filings submitted earlier this month with the Secretary of State.
The group’s basic message to Vermonters is twofold: Look for Article 22, not Proposal 5, on your ballot. The amendment has already gotten enormous press as “Proposal 5” which was its official name while it made its way through the legislative process. But on the ballot in November, it will appear as Article 22.
As for why Vermonters should support the amendment, the group relies on a longstanding message of the reproductive rights movement: my body, my choice.
“We need this amendment because important medical decisions should be guided by a patient's health and well-being, not by politician’s beliefs,” Donnelly said.
Those campaigning against Article 22 freely acknowledge that the majority of Vermonters support access to abortion — and have calibrated their message accordingly. They’ve dubbed their organization Vermonters for Good Government. And they have chosen as their spokesperson Rep. Anne Donahue, R-Northfield, a longtime, moderate GOP lawmaker and former attorney known for pressing her colleagues on the details of legislation.
They are taking aim at Article 22’s expansive language, and attempting to convince Vermonters that it would, in Donahue’s words, open a “Pandora’s box” of legal unknowns and commit the state to “the most radical and most extreme position” on abortion rights.
While the group is outnumbered and out-gunned, they are nevertheless assembling a serious campaign infrastructure. Matt Strong, Vermonters for Good Government’s executive director and sole paid staffer, said 15 to 20 volunteers work on the effort during an average week. The most recent filings show the group had $224,111 sitting in the bank. Almost all of that funding comes from conservative mega-donors Lenore Broughton ($100,000) and Carol Breuer ($50,000), as well as the Roman Catholic Diocese of Burlington ($50,000).
Article 22 states that “an individual's right to personal reproductive autonomy … shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” The language is meant to be inclusive of the right to use or refuse both contraception and sterilization.
Donahue argues that by not mentioning fetal viability, the amendment opens the door to “elective third-trimester abortion abortions.” (Anti-abortion activists made a similar argument in 2019, when the state was considering a law codifying the right to abortion. The Vermont Medical Society has testified that elective third-trimester abortions are not performed in the state.)
For evidence, Donahue pointed to testimony delivered by Eleanor Spottswood, solicitor general at the Vermont Attorney General’s office, to lawmakers when the amendment was being drafted. In the exchange, Rep. Carl Rosenquist, R-Georgia, asked if “anti-abortion” legislation granting personhood to a fetus at 24 weeks would likely be struck down by the courts if Article 22 were to pass. (Such fetal personhood legislation has not made it into law in Vermont.) Spottswood suggested that such legislation would, indeed, likely not survive a court challenge.
In an email, Spottswood disputed that her testimony supported the notion that the state could never impose any restrictions on abortion if the amendement were passed.
“Article 22 is designed to codify the protections of Roe v. Wade, which are not unlimited,” she wrote.
Peter Teachout, a constitutional law expert at Vermont Law School, said nothing in Article 22 would prevent the state Supreme Court from upholding certain restrictions on abortion after viability if the Vermont legislature were to pass them.
“Both (Article 22) and Roe simply require that if a state regulation interferes with that right (to abortion), at any point during the nine months, it has to justify doing so by showing it has a ‘compelling’ interest and the regulation is narrowly drawn to further that interest,” he wrote.
Donahue also argues that by referring to “individuals” instead of women, men will gain new rights — ones that could compete with a pregnant woman’s. The group, on its website, goes as far as to claim that the amendment is “so poorly written” it could “actually end up forcing women to go to court just to seek an abortion.”
But in an interview, even Donahue appeared to push back on that extreme scenario.
“No court is going to say, well, you must or you must not have an abortion based on this competing interest. That would be my assumption,” she said. A “realistic” scenario would be a man being allowed to withhold child support, she said.
Teachout noted that the U.S. Supreme Court has repeatedly held that a pregnant person’s wishes supersede the biological father’s on questions of whether to terminate a pregnancy. There’s no guarantee that a Vermont court would follow suit, he said, but it’s likely. And he said it’s difficult to predict what kinds of competing reproductive rights the courts will have to sort out in the future.
“It illustrates something that constitutional lawyers and jurists have always known, but that lay persons tend not to appreciate: that in making constitutional decisions, the answers are not always provided by the text of the constitution and therefore courts and judges, like the rest of us in making important decisions, ‘cannot escape the pain of choosing,’” he said.
Donnelly said the campaign isn’t planning, for now, on engaging in any counter-messaging to respond to the claims the opposition is making. And he said the goal isn’t to win in November. It’s to win by a decisive margin.
“We don't want the headline the next day to be ‘Vermonters narrowly back reproductive liberty amendment,’” he said. “We would like that headline to read ‘Vermonters overwhelmingly choose to protect reproductive liberty.’”
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