On my first day in the Vermont State Senate, two veteran Chittenden County senators in front of me turned around to ask me a question. Senators Sally Fox and Hinda Miller, in many ways political opposites from this new senator from the Kingdom, asked if I’d consider co-sponsoring a resolution supporting the famous case of Roe v. Wade. Much to their surprise, I didn’t hesitate to sign on.
I’m reminded of that moment as we contemplate two new abortion bills, which I find myself completely opposed to. These abortion bills, H.57 and S.25, were brought in reaction to a changing makeup of the U.S. Supreme Court. Proponents contend Roe could be overturned, so Vermont should preserve its reproductive rights analysis by statute. But do these bills actually do that, or is there a better alternative?
Roe faced disparate abortion laws across the country that ranged from none at all to outright criminal bans. Vermont, for instance, permitted a woman to have an abortion but made it a crime for doctors to perform one. Recognizing the hypocrisy of criminal charges against a doctor assisting in a legal procedure, our Vermont Supreme Court (Republicans one and all) struck down the law in the case of Beecham v. Leahy & Jeffords. (Yes, that Leahy and that Jeffords, the defendant lawyers placed in the difficult position of having to defend the criminal statute.)
Seeking national uniformity, the Roe Court began with the premise that a woman had a right to privacy over reproductive rights throughout her pregnancy. But they also recognized a competing interest arose as a fetus grew stronger over time, especially when that fetus was capable of sustaining life on its own. Dividing a nine-month pregnancy into three “trimesters,” the court permitted state intrusion starting in the second trimester, and only if the proposed regulation was necessary for a “compelling state interest.” This high bar was lowered in the third trimester to a “rational basis” test, slowly ceding ground as a fetus came to full term. This balancing test, admittedly never satisfying those at either extreme of the debate, worked reasonably well to settle the issue. For that reason, I had no hesitancy signing a resolution supporting it.
But, I don’t believe either H.57 or S.25 is a proper response should Roe be overturned. H.57 completely eliminates Roe’s balancing test by declaring a fetus to have no rights at all. An abortion could thus be performed on a perfectly viable fetus, without any medical necessity, literally up to the moment of full term. S.25’s language insulates an abortion health-care provider from any civil, criminal or administrative liability. The woman would actually lose a right, the state would be powerless, and the provider’s employer could never impose sanctions even when gross negligence or willful malfeasance is involved.
As an aging white male, some may hold me suspect for even entering this discussion. But this pro-choice Republican is hard pressed to believe the vast majority of Vermonters can support the way these bills eliminate Roe’s four-decades-old balancing test. I suspect even the most ardent pro-choice supporter feels discomfort defending the position that a near-full-term baby, fully capable of survival outside the womb, can be aborted without any right of society to even ask why. We should never protect providers who act with gross negligence or willful malfeasance. These bills don’t work.
Thankfully, there is an alternative. Senate Proposal 3 would amend the Vermont Constitution to explicitly declare a right to privacy. Patterned after a similar provision in the Montana State Constitution, it would prohibit infringement upon that right without the showing of a compelling state interest. Every citizen, no matter their gender or skin color or personal beliefs, would have a right to privacy. The state would always bear the burden of demonstrating a “compelling state interest” when a regulation seeks to override it. Women would retain a balancing test similar to Roe, and so would every citizen whose privacy rights were potentially subject to state interference. This amendment would rekindle Vermont’s heritage as a champion of individual freedom, would shield us against whatever our federal government does, and quickly settle a divisive debate. Senate Proposal 3 deserves our utmost consideration.
Joe Benning is a Republican state senator representing Caledonia County.