Voting on Amendments to the State Constitution

by Katherine Sims, State Representative, Orleans-Caledonia

This year, in addition to electing candidates, voters will vote on two amendments to the Vermont state constitution: Proposal 2 (“Prop 2”) and Proposal 5, the Reproductive Liberty Amendment (RLA). With ballots arriving in folks’ mailboxes, I want to provide background on the amendments, address questions about the language and illustrate how these amendments move our state closer to liberty for all.

What is Prop 2? Vermont is the only state that has a constitutional provision permitting involuntary servitude to pay a debt, damage, fine, or cost. Prop 2 would add language to the Vermont Constitution that says, “slavery and indentured servitude in any form are prohibited” and repeal language stating that persons could be held as servants, slaves, or apprentices with the person’s consent or “for the payments of debts, damages, fines, costs, or the like.” This language from the eighteenth-century no longer makes sense in the context of our state’s commitment to the fair and equal treatment of ALL Vermonters.

What is Prop 5 or the Reproductive Liberty Amendment? The Reproductive Liberty Amendment (RLA) would add new language to the state’s constitution through a new article, Article 22, enshrining reproductive liberties in our state’s constitution.

Legislators have debated the RLA for four years. The final language has been extensively vetted by legal and medical experts. Its wording, though awkward, was developed to align with previous U.S. Supreme Court decisions and follow what is referred to as the “plain meaning rule.” It is intentionally inclusive–the amendment would protect every person’s right to make their own reproductive decisions. That includes whether and when to become pregnant, use temporary or permanent birth control, choose or refuse sterilization, or seek abortion care.

What would change related to health care with passage of Prop 5? The RLA does not expand or change the way reproductive health care is delivered in Vermont today. Though reproductive health care is currently unrestricted by state law, health care practitioners follow strict standards of ethical medical practice and help patients make decisions about reproductive health care based on their health status, personal situations, and core values.

Currently more than 92% of abortions in Vermont occur during the first 12 weeks of pregnancy. A pregnancy termination beyond 21 weeks, six days only occurs in a hospital after a complete medical and ethical review of very specific circumstances, including severe fetal anomaly, a fetal condition incompatible with life, or a dangerous, possibly life-threatening maternal health issue. Abortions at that stage in pregnancy are never performed as elective procedures.

Why does Prop 5 refer to a “state interest” if it is meant to reduce the chance of future government restrictions? The RLA uses the language: “a compelling state interest achieved by the least restrictive means.” This language is known in the legal world as “the strict scrutiny test.” It offers the strongest constitutional protection possible against efforts to restrict our rights. The strict scrutiny test requires the government to prove that: 1. the interest served by the law is “compelling” or important enough to justify infringing on a fundamental right, and 2. that any infringement on rights is done in the least restrictive way possible.

This is the standard already applied to the most serious cases in which the government infringes on our core liberties, like restricting the right to free speech or explicitly discriminating based on race. Without the language of strict scrutiny, a judge or court could limit someone’s right to personal reproductive autonomy based on their own personal beliefs or preferences.

What happens if Prop 5 fails to pass? If Prop 5 is not approved, Vermonters’ reproductive freedoms will continue to depend on the politicians in office at any given time. A future legislature could repeal the Freedom of Choice Act or otherwise restrict access to reproductive health care and abortion in our state.

The RLA would ensure that restrictions on abortions continue to be made by medical professionals, hospitals and the Board of Medical Practice. Not legislators or judges. Voter approval of the RLA assures Vermonters long-term access to reproductive health care and reproductive liberty as a fundamental human right.