On February 8th, Vermont’s House passed the Proposition 5 amendment to the Vermont constitution. The amendment now seeks voter approval come election day, November 8.
Proposition 5 is a reproductive liberty amendment; it would protect the right of Vermonters to get an abortion. Currently, Vermont is one of seven states with no abortion restrictions. If this amendment is ratified, it would make Vermont the first state to have reproductive liberties outlined in its state constitution.
“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.” -Proposition 5
Those who may not listen to the Vermont congress sessions may be asking why should this be in the state constitution. This amendment and its political significance lie in the makeup of the new supreme court.
Abortion rights are actively being challenged in the United States. During their October 2021-2022 session, the U.S. Supreme Court heard three cases dealing with abortion rights; the most consequential of which was Dobbs v. Jackson Women’s Health Organization. The case was struck down by the federal district court, but the appeal was heard by the supreme court in December. Unlike the cases United States v. Texas and Whole Woman’s Health v. Jackson, which both dealt with whether parties can file suit to challenge and prevent enforcement of unconstitutional abortion laws, the case of Dobbs v. Jackson Women’s Health Organization is directly challenging the constitutional precedent Roe v. Wade.
When striking down the case, the district court’s Judge Reeves wrote “The state chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.” Unlike the courts the case has faced previously, who all stated the constitutional precedent as the reason the law has no standing, the Supreme Court is using this case as a chance to rewrite that precedent.
According to the court transcript, the question under deliberation is “whether all pre-viability prohibitions on elective abortions are unconstitutional.” The Jackson Women’s Health Organization brought up the case against the Mississippi Gestational Age Act, a law that prohibits abortions if the fetus is older than 15 weeks. This law challenges Roe v. Wade and Planned Parenthood v. Casey–supreme court cases that set a constitutional precedent that no state can make laws banning abortions that occur before the fetus is viable at proximally 24 to 28 weeks.
The Mississippi law is not the first made by the states that challenged them. Laws like the Texas Heartbeat Act, which bans abortions after six weeks, and the Human Life Protection Act in Alabama seek to criminalize doctors performing abortions are the two of the most recent made. Many states have old pre-Roe laws still in enact. If Roe v. Wade is to be overturned, those laws would become enforceable again.
During the oral arguments for this case, the justices asked questions not only about what the viability line should be, but also questions on the principle of stare decisis. Stare decisis is the doctrine of the court that compels justices to refer to precedent cases when deciding on new ones. Justice Stephen Breyer read from the court’s own guidelines written in Planned Parenthood v. Casey that “to overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.” But Justice Brett Kavanaugh brought up example cases like Brown v. Board of Education, which undid previous precedents. “In each of those cases–and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history–the Court overruled precedent.” If this case undoes Roe v. Wade, it will join the list Kavanaugh mentioned. Justice Amy Comey Barrett brought up adoption and Safe Haven laws as an alternative to relieve the “burden of parenting,” a phrase used in the argument of Julie Rickelman, the representative for the Jackson Center for Reproductive Rights.
Despite these questions, no one can be sure how the votes will fall from the oral argument stage. After the death of Ruth Bader Ginsburg, the liberal-leaning judges no longer have the votes to support abortion protections. Chief Justice John Roberts, despite being a conservative-leaning judge, has stood with the liberal judges on several past abortion rulings. Assuming the judges vote on party lines and Chief Justice Roberts sides with the liberal-leaning judges, the vote would still be 5-4. But the decision on this case won’t come until around the end of the 2021-2022 supreme court session.
If the framework of Roe and Casey are overturned by the decision of this case, access to abortion could vary widely depending on the state. Proposition 5 doesn’t guarantee new laws will never be proposed to regulate abortion, but the language “by least restrictive means” does protect from laws that criminalize abortion in Vermont.
Feature Photo by Carter Lee Toro