Vermont House Bill H.57 and Senate Proposition 5 to amend the Vermont Constitution guarantees a woman the right to terminate her pregnancy at any time. Proponents claim granting this right codifies federal law and widespread practice in the United States. These pieces of legislation are in reaction to the possible reversal of Roe v. Wade by the Supreme Court.
Opposition to H.57 and Proposition 5 has come from those who want to reverse Roe in order to prohibit abortion. If the actions by the Vermont Legislature move from precaution to active law, anti-abortionists may come to a limited appreciation of Roe. H.57 and Proposition 5, on their face, authorize abortion on demand. In Roe, the court rejected abortion on demand.
In the original ruling in Roe, the justices divided pregnancy into three trimesters ending at weeks 12, 26 and up to birth. In the first trimester, termination of pregnancy is a decision made between the woman and her medical provider. During the second and third trimester, there is a legitimate “state interest” in addressing both the health of the woman and the potential life of the fetus.
In contrast to Roe, H.57 seeks “ ... to safeguard the existing right to reproductive health services in Vermont by ensuring that those rights are not denied, restricted, or infringed by any governmental entity.” Proposition 5 states the right to terminate a pregnancy “shall not be infringed unless justified by compelling State interest achieved by the least restrictive means.” Are there any possible “compelling state interests?”
Much of the discussion about H.57 and Proposition 5 has focused on “late-term abortions.” Proponents of the legislation assert late-term abortions are exceedingly rare and no one in Vermont performs the procedure. Maybe, but how late is “late?” The average length of normal pregnancy is 40 weeks. The period for viable premature birth extends back to the 22nd week. Half of the premature babies born between the 23rd and 24th week survive.
Dr. Ira Bernstein, chair of obstetrics and gynecology at the University of Vermont Medical Center, has stated the hospital has “strict practices” for late abortions. “After 23 weeks, any request for an abortion receives a broader review by a panel that includes both medical staff and hospital ethicists. The panel considers risk factors for both the mother and child ...” (VTDigger, Feb. 22, “The Deeper Dig: Who decides on reproductive rights”). Because each case is different, Dr. Bernstein believes the final decision should remain with the medical professionals.
True enough that “each case is different” but, difficult as it may be, I believe there is a state interest that should be spelled out in legislation. New York’s liberal abortion law permits abortions after 24 weeks only if “there is absence of fetal viability.” Will late abortions be permitted in Vermont for grave “fetal deformity,” and if so, how should that be defined?
Promoters of H.57 evidently think assurances like those of Dr. Bernstein are sufficient to protect viable infant life so that legislative specifics are unnecessary. In sharp contrast, however, to the broad language of H.57 and Proposition 5, Vermont Act 39, “The Patient Choice and Control of End of Life,“ passed in 2013, has very specific instructions to health care providers on how they must inform the patient and what they can and cannot do.
Political footnote: If language like H.57 or Proposition 5 is accepted by the Democratic Party and its presidential candidate in 2020, I believe the Democrats will lose the election. Donald Trump has already begun to demonize abortion on demand. For all that he distorts the intent of legislation like H.57 and Proposition 5, I believe abortion on demand is “a bridge too far” for the electorate as it was for Roe v. Wade.
Dennis O’Brien lives in Middlebury.