Fearing Roe v. Wade Overturn, Lawmakers Push For Abortion-Rights Amendment In Vermont

Dec 20, 2018

A proposal from Vermont lawmakers to add an abortion-rights amendment to the state constitution has advocates on both sides of the issue gearing up for an emotional debate over the future of reproductive rights in the state.

Leslie Sullivan Sachs was an 18-year-old college freshman when she found out she was pregnant. She says she knew in her core that she needed to terminate the pregnancy.

But it was 1974. Roe v. Wade had been on the books for less than two years. And at her Catholic college especially, abortion was taboo.

“I never doubted that I made the right decision. I never felt shame about the decision that I made,” Sullivan Sachs said. “But I had to keep it intensely private, not tell anybody.”

Twenty-three years later, Sullivan Sachs had her second abortion. She was 41 years old this time, with three kids now and freshly separated from her husband. This time, however, she says the experience was more positive.

“I was able to share it with my girlfriends. I was able to, you know, feel that I had a support,” Sullivan Sachs said. “And there was no question about the ease of access or a financial burden.”

Sullivan Sachs, who lives in Brattleboro, says dignified access to abortion is a foundation of female autonomy and gender equity. With a conservative majority now in charge of the U.S. Supreme Court, she says doesn’t want to see access slide backward.

"Conservative legislative trends have been terrifying. It seems like now is the time that women really have to take action and speak out on our own behalf." — Lisa Kuneman, abortion-rights advocate

Sullvian Sachs is sharing her story in the hope that lawmakers will move forward with a constitutional amendment next year that would enshrine the right to abortion in the state constitution.  And she’ll be joined by people like Lisa Kuneman, who says she had to worry about social persecution after she got an abortion when she was 17.

“Conservative legislative trends have been terrifying,” Kuneman said. “It seems like now is the time that women really have to take action and speak out on our own behalf.”

The last presidential election turned out to be a pivotal one for the U.S. Supreme Court, and President Donald Trump’s two appointments to the bench have handed the court a clear conservative majority.

Vermont Senate President Pro Tem Tim Ashe says it’s not inconceivable that those justices will overturn the 1973 landmark case that effectively legalized abortion.

“We want to make sure that should the U.S. Supreme Court push this back to the states, that we have clearly expressed affirmed rights to reproductive choice,” Ashe said.

Standing in lawmakers’ way will be anti-abortion advocates like Mary Beerworth, executive director of Vermont Right to Life, an organization that derives its name from a line in the Declaration of Independence.

“Our first guaranteed right is the right to life, without which discussing liberty or pursuit of happiness is meaningless,” Beerworth said.

"And I find it just personally sickening that we have a constitution that's written based on the Declaration of Independence, which guaranteed life, and Vermont wants to write death into the constitution." — Mary Beerworth, Vermont Right to Life

For Beerworth, and others who believe that human life begins at conception, the idea of adding abortion-rights language to the state’s founding charter is antithetical to the values Vermont should be upholding.

“And I find it just personally sickening that we have a constitution that’s written based on the Declaration of Independence, which guaranteed life, and Vermont wants to write death into the constitution,” Beerworth said. “Everybody knows that when you’re standing in front of a pregnant woman, there are two human persons involved.”

Members of Vermont’s anti-abortion movement are especially concerned about the effect of a constitutional amendment on what they call “common sense” restrictions on abortion. Sharon Toborg, who serves as treasurer of the Vermont Right to Life Committee, concedes that most Vermonters favor abortion rights.

But she says that doesn’t mean they wouldn’t support things like parental notification for minors, or restrictions on late-term abortions.

“And something like a constitutional amendment really shuts down the democratic process and the discussions that we really should be having around this issue,” Toborg said.

Beerworth and Toborg also question the need for an amendment. There’s nothing in Vermont law that criminalizes abortion now. And a 1972 Vermont Supreme Court case, called Beecham v. Leahy, is sort of a state-level version of Roe v. Wade, and established a precedent that would remain on the books here even if Roe v. Wade was overturned.

Vermont Law School Professor Peter Teachout says the state’s existing statutory framework, not to mention its left-leaning legislative institutions, mean it’s unlikely that abortion rights would come under threat anytime in the near future. But Teachout, who’s advising legislators as they draw up the amendment language, says trends can change.

“And I think it might serve both symbolically and practically as a prophylactic against that future day when maybe the political climate in this state … shifted toward the right,” Teachout said.

"You can try to put a right into the constitution in a general language. But you are never going to avoid the likelihood that challenges, or that restrictions of some sort, or requirements of some sort, might be imposed." — Peter Teachout, Vermont Law School

Teachout, however, says it’s unlikely that the amendment would put to rest forever the abortion debate. Even with an abortion-rights amendment, Teachout says, future Legislatures could argue there’s a compelling state interest for restrictions on those rights.

“You can try to put a right into the constitution in a general language,” Teachout said. “But you are never going to avoid the likelihood that challenges, or that restrictions of some sort, or requirements of some sort, might be imposed.”

Behind the scenes, Planned Parenthood of Northern New England is leading the push for the amendment. Lucy Leriche, vice president of public policy for the organization, says there 28 abortion-rights decisions from lower courts that could come up for review by the U.S. Supreme Court within the next year. And she says that lends some urgency to the need to act in Vermont.

Leriche says Vermont wouldn’t be the first state to create an abortion-rights amendment.

“So this is not some out-of-left-field, wacky idea,” she said. “We currently have nine states that have abortion protections in their state constitution.”

Changing the constitution is a multi-year process. The amendment will have to pass not once but twice through both chambers of the Legislature. And after that, it would still need majority support from Vermonters in a statewide ballot initiative.

Though the governor has no formal role in the passage of a constitutional amendment, Gov. Phil Scott's spokeswoman, Rebecca Kelley, says he's open to supporting the proposal.

"The Governor support’s (sic) a woman’s right to choose, and has said if action is taken at the national level that would erode this right, he’d support measures to protect it in Vermont," Kelley said in a written statement. "He understands why the Legislature would consider a proactive step this session and we’ll be listening to those discussions."