Vermont’s House and Senate on Tuesday each approved new legal protections for women’s access to reproductive health care.
House lawmakers voted 106-38 to approve an amendment to the state’s constitution that originated in the Senate. The Senate, meanwhile, approved a bill, known as the Freedom of Choice Act, that originated in the House and was designed to ensure protections for abortion rights to Vermonters regardless of the outcome of the constitutional amendment, which won’t be decided until 2022.
Abortion has been a legally protected right in Vermont since the U.S. Supreme Court's 1973 Roe v. Wade decision. In response to the unpredictable nature of the federal government under President Donald Trump, lawmakers this year pursued a two-pronged approach to making those protections clear at the state level.
The amendment approved by the House would add the following passage to Vermont’s constitution:
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.
Much of the House debate focused on technicalities. Multiple reps asked House Human Services Committee chair Ann Pugh (D-South Burlington) what kind of “compelling state interest” might be used as justification to restrict rights, and Rep. Heidi Scheuermann (R-Stowe) asked whether the amendment could be used by men as a justification not to pay child support to a woman who carried a child to term over the father’s objections.
Pugh said the amendment wouldn’t change any of Vermont’s child support laws. Citing the fact that she isn’t a lawyer, she said she couldn’t say for sure what “compelling state interest” might mean.
Rep. Anne Donahue (R-Northfield) opposed the amendment, she said, because the language is too broad and open to interpretation and there isn’t an urgent need for the change.
“There is no current threat to the right of abortion or contraception in Vermont,” she said.
Pugh painted a different picture.
“Since 1992, U.S. Supreme Court decisions have begun to dismantle Roe v. Wade,” she said, adding that abortion protections in the U.S. Constitution are “now unreliable.”
Rep. Cynthia Browning (D-Arlington) objected to the amendment and warned that it could lead to complications for anyone taking a voter’s oath or an oath of office in Vermont. Those oaths require a pledge to uphold the constitution, and Browning said people who object to abortion may take issue with such an oath if the amendment passes.
The legislation approved by the Senate, H.57, would take effect as soon as it becomes law, though Gov. Phil Scott has not publicly said whether he'd sign the bill.
The House passed the measure in February by a 105-37 vote, and the Senate vote Tuesday was 24-6, which means both chambers have the votes to override a potential gubernatorial veto.
The legislation prohibits any restriction on access to abortion and any punishment by the government for anyone seeking an abortion. The bill also prohibits any public agency at the state or local level from limiting access to abortion though “the regulation or provision of benefits, facilities, services, or information.”
If the House bill becomes law this year, its protections will be in place even if the constitutional amendment is defeated later. If both pass, legislative attorneys have said there would be no conflict between the two.
Sen. Ginny Lyons (D-Chittenden) said time is of the essence for the bill because of the increasingly conservative makeup of the U.S. Supreme Court. She said the court could overturn its 1973 decision, and soon.
“That will eliminate the reproductive right to abortion. A decision could come as early as spring 2020," Lyons said on the Senate floor Tuesday afternoon. “Without H.57, if Roe v. Wade is overturned, Vermont women would not know where they stand.”
Sen. Ruth Hardy (D-Addison) agreed.
“Our national context and the political realities in so many other states have shown us that we in Vermont must not be complacent," she said.
Sens. Randy Brock (R-Franklin) and Joe Benning (R-Caledonia) both expressed concerns about the legislation because it doesn't include any protections for unborn fetuses. They said Roe v. Wade is a preferable legal standard because it provides a balance between the rights of a mother and the rights of a viable, unborn fetus.
Brock said he supported the constitutional amendment because it includes a caveat that allows restrictions on reproductive rights when there is a "compelling state interest" but cannot support the legislation that allows abortions without consideration for the fetus.
Benning, referring to viable fetuses, said he "can't reach that place that says a perfectly healthy baby is not even entitled to any consideration."
While the legislation only requires the governor’s signature in order to take effect, the constitutional amendment faces a longer road. Now that it has been approved by the Senate and the House, the amendment is essentially on pause until after the 2020 election.
Once voters have chosen a new batch of lawmakers to represent them in 2020, that legislature must again approve the amendment by a majority vote of both the House and the Senate. If it passes that stage, the proposed amendment will be presented to voters statewide on Election Day 2022. If the majority of voters approve it, the amendment becomes part of the constitution immediately.
Correction, May 8, 2019: A previous version of this story contained an incorrect tally of the results from February's House vote on H.57.