Roe-ing Upstream: Vermont’s Lopsided Battle Over Abortion Rights | Fair Game | Seven Days | Vermont's Independent Voice

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Roe-ing Upstream: Vermont’s Lopsided Battle Over Abortion Rights


Published February 6, 2019 at 10:00 a.m.
Updated February 12, 2019 at 11:29 a.m.

Fair Game is Seven Days’ weekly political column.

The elevation of Brett Kavanaugh to the U.S. Supreme Court last fall has touched off a new round in the decades-long battle over abortion rights. In many states, anti-abortion lawmakers have introduced bills to restrict access. In other states, including Vermont, pro-choice lawmakers are seeking to protect reproductive rights in case the high court overturns Roe v. Wade, which established a nationwide right to abortion. Critics say the Vermont bills go too far.

A House committee is considering H.57, which would enshrine reproductive rights in state law. The Senate has a similar bill, S.25.

Vermont's outnumbered anti-abortion advocates are planning a spirited pushback. "There's a real fresh sense of anger triggered by this bill and similar bills in other states," said Mary Hahn Beerworth, executive director of the Vermont Right to Life Committee. The anti-abortion effort is almost certain to fail.

That may seem harsh. But the House bill had 91 cosponsors at last count. A mere 76 are needed for passage. And Beerworth is setting her expectations low. "We're primarily trying to educate people," she said. "It's up to the legislature whether they want to listen. We're just going to do our job."

Democratic leaders have made the issue a top priority. They say that while abortion is legal in Vermont, that's not enough at a time when Roe is in jeopardy. "We need to establish a proactive right to abortion," said Sen. Phil Baruth (D/P-Chittenden), the lead sponsor of the Senate bill.

One could argue that a Vermont law is unnecessary. In a decision issued mere months before Roe, the Vermont Supreme Court threw out a state law preventing doctors from performing abortions. Still, leading lawmakers want to make certain that abortion rights are preserved.

The House bill would "recognize as a fundamental right the freedom of reproductive choice." The Senate proposal would "establish the right to have an abortion." Some states are considering similar measures. New Mexico and Rhode Island are considering the expungement of pre-Roe restrictions on abortion. Maryland Democrats plan to introduce a constitutional amendment to protect abortion rights. Such an amendment is being considered in Vermont, but the process is extremely cumbersome, so legislative leaders want to pass a law in the meantime. Last month, New York enacted a law easing restrictions on late-term abortions. The Maine legislature has passed a bill requiring the state to fund some abortions not covered by Medicaid.

Abortion opponents have loudly opposed such bills in other states, claiming that the legislation would remove all limits to abortion. Beerworth echoed the argument, saying that the House bill would create "an unrestricted right to abortion" that "goes well beyond Roe v. Wade."

During a public appearance on Monday in Bennington, Bishop Christopher Coyne of the Roman Catholic Diocese of Burlington said he opposed the legislation. "I wish House Bill 57 didn't show up. I wish it went away," he said, according to the Bennington Banner.

Sponsors of the Vermont legislation say their bills would not change the status quo. "The intent is to codify current access to abortion in Vermont," said Rep. Ann Pugh (D-South Burlington), a cosponsor of the House bill. "It does not change anything about what is currently allowed or how Vermont treats access to abortion."

As for the Senate bill, Beerworth is alarmed by this passage: "A health care provider performing or assisting with a legal abortion procedure shall not be subject to any civil, criminal, or administrative liability." That sentence, she said, would "lift abortion entirely out of the realm of malpractice."

Coyne made a bold claim about both bills: that they would allow abortion "right up until the moment of birth."

Sponsors say Coyne and Beerworth are ignoring a key point. "This bill would not preempt federal laws," said Pugh. Those laws are guided by the Roe precedent and include, among other things, a ban on dilation and extraction procedures, dubbed "partial birth abortions" by pro-life groups.

Baruth, for one, is open to amendments. "The idea was to protect rights currently enjoyed under state law," he said. "If a committee determines that [the Senate bill] goes beyond that intent, it can amend the legislation."

The anti-abortion community's efforts may be aimed at precisely one person: Republican Gov. Phil Scott. Some version of the legislation is almost certain to reach his desk. Scott has long favored reproductive rights, but in the past he has backed parental notification for minors seeking abortions. When he first ran for governor in 2016, the Planned Parenthood Vermont Action Fund spent roughly $450,000 on TV ads attacking Scott.

During his reelection run two years later, the organization stayed on the sidelines after Scott posted a perfect score on its issue questionnaire. That included a "Yes" answer to the question, "Do you support legislation that would guarantee full, unrestricted abortion rights into state law?"

Nevertheless, Scott is not ready to commit to the bills now in play. At a press conference last Thursday, the governor repeatedly avoided a definitive answer. "I am supportive of a woman's right to choose," Scott said. Then he added, "I've heard from quite a few [legislators] who are worrisome [sic] about some of the provisions. So we'll let it go through the process, and we'll see where we go from here."

When asked for clarification on Tuesday, administration spokesperson Rebecca Kelley wrote that the concerns center on "unanswered question about the breadth of the language and the intent."

Could Scott be persuaded to veto a bill due to "worrisome" elements? In his first term, he frequently vetoed bills because of perceived legal or constitutional concerns. But if he vetoed an abortion rights bill, he'd risk breaking his commitment to Planned Parenthood after the organization did him a solid by sitting out last year's campaign.

It's virtually certain that he'll have to make that decision in the near future.

Ethics Under Wraps

It's looking unlikely that the legislature will do anything this year to advance the cause of ethics reform for state government. The status quo is probably the best-case scenario, and a modest rollback is quite possible. Key Democratic lawmakers seem to view ethics enforcement as more of a nuisance than a public good.

This became apparent during a hearing of the House Government Operations Committee last Thursday. The panel accepted the first annual report of the Vermont State Ethics Commission — and peppered commission chair Madeline Motta with sharp questions. The main focus was the commission's advisory opinion about Gov. Scott's relationship with DuBois Construction, which he co-owned before taking office. Because DuBois frequently bids on state contracts, he sold his half-share to his former business partner before taking office — but he self-financed the deal. That leaves the governor with a long-term loan that comprises the bulk of his net worth and provides him with $75,000 in annual income.

The commission found that the arrangement did create a conflict of interest. It did not mention Scott by name, but the details were unmistakable: A "public official" who "has a direct financial interest in his former company ... which paid the public official $75,000 in 2017 as the result of a financing deal that the public official entered into in 2016."

That's the governor, and no one else.

The opinion sparked concern among lawmakers — not about Scott's finances, but about the opinion itself.

Advisory opinions are supposed to provide general guidance to people covered by a code of ethics. They are not usually focused on a single case, nor are they usually a vehicle for outside entities. In this case, the opinion was crafted at the request of the Vermont Public Interest Research Group and released in early October — just a few weeks before Election Day.

"It's not clear [the ethics commission] had the authority to issue an advisory opinion at the request of an outside organization," said Government Operations Committee chair Sarah Copeland Hanzas (D-Bradford) in an interview after the hearing. "It is clear they didn't have the authority to issue an advisory opinion specifically about one individual." Rep. Jim Harrison (R-Chittenden) went further, implying that the panel may have breached its own code by releasing the opinion.

Motta argued that the ethics commission followed the law as written. She described its wording as "loose" and asked that the law be changed. The legislature is likely to concur, which would be a loss for transparency; the advisory opinion is the only function of the commission that is subject to public disclosure.

The commission has no investigative or enforcement powers. It is now seeking broader authority. If Thursday's hearing is any indication, its plea will encounter resistance. "It seems clear that they have not grown into their role," said Copeland Hanzas. "I'd hesitate [to expand its reach] until there's a better understanding of the authority they have in current law."

Copeland Hanzas went even further, suggesting that there's little need for an ethics panel. "We are a small state," she said. "We have the Town Meeting tradition and avenues of contact between citizens and officeholders. We need to grow into this slowly so we're not going to unleash a crazy bureaucracy."

Like the ethics commission, the House and Senate's internal ethics operate entirely behind closed doors. Both panels recently issued their required biennial reports. Both are a couple of paragraphs long and scarcely worth reading.

The Senate Ethics Committee met only once in the last two years. It received no complaints and took no action. Senate Minority Leader Joe Benning (R-Caledonia), chair of the panel, expressed a preference for a more informal process. "In a body of our size, if there was anything questionable going on, the person would be talked to and the situation resolved," he said.

Neat and tidy. And completely out of the public's view.

The House Ethics Panel received five complaints, all in 2018. It "disposed of" four and referred one elsewhere. And that's all the information you're going to get, folks.

Here's a chat with panel member Rep. John Gannon (D-Wilmington).

You can't talk about the complaints? "That's correct."

Were there any general trends? "I would prefer not to speak about the complaints."

The report says you disposed of four complaints. "That's correct."

Were there any positive findings? "We resolved them."

Would that include both negative and positive findings? "That's correct."

He then explained that if the panel recommended sanctions against a lawmaker, the matter would be referred to the full House. I made one more try: Since it appears that no cases were sent to the House, does that mean the ethics panel did not recommend any punishments?

"Those are your words," said Gannon with a laugh.

In sum, the state's ethics procedures are shielded from disclosure. Lawmakers and state officials seem perfectly content with that. Whether it's consistent with the public interest is another question. Would you like to know if your representative was the subject of a complaint, and if so, how it was resolved?