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The Right Choice

Outside Track


Published August 17, 2005 at 4:00 p.m.

Editor's Note: Peter Freyne is on vacation this week.

Now that Sandra Day O'Connor has resigned from the Supreme Court, inquiring minds want to know: What will happen to our reproductive rights? The Court is deeply divided over whether the United States Constitution encompasses a right to privacy, and whether it includes the right to terminate a pregnancy. It has considered overturning Roe in the past. Were it not for O'Connor, Roe would likely already be history. Although she was willing to allow the states more latitude in regulating abortion, O'Connor convinced a majority of the court to re-affirm the basic right to choose. With John Roberts' nomination pending, reproductive freedom is once again in doubt.

It should come as no surprise that President Bush nominated someone who is at the very least skeptical, if not outright hostile, to Roe v. Wade. While at the Justice Department, Roberts argued that Roe was wrongly decided. In fairness, Roberts was representing the Bush I administration, so it's unclear whether Roberts was speaking for himself or his boss. When asked about Roe during his confirmation to the Circuit Court, Roberts said he believed Roe was settled law. He has since reiterated that judges should respect precedent.

Then again, this is the Supreme Court, which has the power to overrule itself. And Roberts has spent his career working for conservatives, including clerking for Chief Justice William Rehnquist, the Court's most vocal Roe opponent. So let's not kid ourselves. No matter what Roberts says during confirmation hearings, there's a strong probability that sometime during his life tenure on court, he would vote to overturn Roe v. Wade . That's why antiabortion groups overwhelmingly endorse him.

Of course, even if Roberts is confirmed, the court still won't have the votes to overturn Roe. But as long as the public keeps voting for antiabortion presidents, the question isn't if, but when Roe will be overturned. At that point, abortion law would revert to its pre-1973 status, in which each state would decide for itself whether, and under what conditions, a woman could terminate a pregnancy.

What would that mean for Vermont-ers? In the short term, abortion would remain legal. When our state Constitution was adopted, abortion was legal in Vermont until "quickening" --somewhere around the second trimester. It was thought this was when life actually began. In 1846, however, the state made it illegal for anyone to perform an abortion, though not for a woman to obtain one. Under the law, women had to self-induce an abortion, with no counsel or aid from a doctor.

Then, in 1972, just months before Roe v. Wade was decided, the Vermont Supreme Court decided Beecham v. Leahy & Jeffords. The case involved a welfare recipient who couldn't afford to go out of state for an abortion. Had her doctor terminated her pregnancy, he would have been subject to prosecution. Ironically, Patrick Leahy was the State's Attorney for Chittenden County, and Jim Jeffords Attorney General. Today, both men are pro-choice. But in 1972, they argued that the law should be upheld. The Vermont Supreme Court disagreed, ruling that having affirmed the right of a woman to abort, the legislature cannot simultaneously deny her medical aid. What troubled the court most was the state's hypocrisy. Thus, there are currently no laws in Vermont restricting access to abortion.

IfRoe is overturned, the Vermont State Legislature could arguably criminalize abortion for both women and the professionals who perform them. If such a law came to pass, it would be instantly appealed to our Vermont Supreme Court. Given the language from Beecham, and the current justices, it's likely the Court would rule such a law unconstitutional. But Vermonters shouldn't bet on it, which is why we ought to be as concerned about who is appointed to the Vermont Supreme Court as we are about who is appointed to the United States Supreme Court. Indeed, when Brian Burgess, Governor Douglas' latest appointee to the Vermont bench, comes up for confirmation in January, he should be asked about his view of Beecham, just as Roberts should be asked about his view of Roe.

Reproductive freedom isn't all that's likely to be affected if Roberts joins the Court. O'Connor was the pivotal fifth vote in cases involving gender discrimination, Title IX and affirmative action. Many of the rights women take for granted could eventually be deconstitutionalized. That would leave it up to the states to decide what "equality under the law" really means. Vermont's elected officials are much more likely than those in other states to uphold those rights, but we shouldn't expect that preserving them will be easy.

There's another worse-case scenario worth contemplating. The Supreme Court could hold that a fetus is a person under the United States Constitution. This is the position of many anti-abortion groups and President Bush. While it's unlikely to happen soon, if the Court grows increasingly conservative on social issues, it may be just a matter of time. Not only would women lose the right to make private medical decisions about their pregnancies, but the states couldn't allow for abortion even if they wanted to. If that happened, it wouldn't matter whether you lived in Vermont or Virginia.

Cheryl Hanna is a professor at Vermont Law School.

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