Eric Davis: Constitutional amendments loom

Vermont’s constitution is the most difficult to amend of any of the states. In many states, proposed constitutional amendments may be placed on the ballot by petitions signed by voters, or after a single vote by the state legislature. There is no procedure for citizen-initiated constitutional amendments in Vermont; they can originate only in the Legislature. Amendments must be approved by both houses in two successive Legislatures, with a general election intervening, before they appear on the general election ballot for approval by the voters.
The Vermont Senate will vote soon on two constitutional amendments already approved by the 2019-20 Legislature. After re-approval by the Senate and House, the amendments would be on the November 2022 ballot. The first amendment would prohibit slavery in all circumstances. The second amendment would protect reproductive rights in Vermont.
The Vermont Constitution of 1777 prohibited slavery, and was the first constitution in North America to outlaw the practice. However, the language used was somewhat muddled, reading “no male person, born in this country, or brought from over sea, ought to be holden by law, to serve any person, as a servant, slave or apprentice, after he arrives to the age of twenty-one Years, nor female, in like manner, after she arrives to the age of eighteen years, unless they are bound by their own consent, after they arrive to such age, or bound by law, for the payment of debts, damages, fines, costs, or the like.”
The Thirteenth Amendment to the United States Constitution, ratified in December 1865, prohibits slavery and involuntary servitude throughout the United States. The proposed amendment to the Vermont Constitution is being proposed to clarify the intent of the 1777 Constitution rather than to change the law. The amendment would replace the existing language with the phrase “slavery and indentured servitude in any form are prohibited.”
The text of the second proposed amendment is “That an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling state interest achieved by the least restrictive means.”
The intent of this amendment is to protect the provision of abortion and other reproductive health services in Vermont by giving them the status of state constitutional rights. Doing so would provide continued protection of these rights should the U.S. Supreme Court overrule Roe v. Wade, or otherwise substantially restrict the provision of reproductive health services.
As the Supreme Court has become more conservative over the past two decades, it has steadily narrowed the framework within which women may exercise reproductive freedom. Although the Court has, to date, not overruled the 1973 holding of Roe v. Wade that a woman’s right of privacy, encompassed by the Fourteenth Amendment, prevents a state from banning abortion entirely, the Court has upheld most restrictions on abortion that have been enacted by state legislatures.
Now, advocates of severe limits, if not outright bans, on abortion see the replacement of Justices O’Connor, Kennedy and Ginsburg by Justices Alito, Gorsuch and Barrett as providing the votes to overrule Roe v. Wade. Both Justices Thomas and Alito have written in dissenting opinions that they believe Roe v. Wade was wrongly decided and should be overruled. Justices Gorsuch, Kavanaugh and Barrett have made the same point, explicitly or implicitly, in speeches and law review articles over the past few years.
If five Justices are ready to overrule Roe v. Wade, the vote of Chief Justice Roberts, who has supported many state restrictions but has not stated his views on Roe, would not matter. If the Court accepts an abortion case for review during its 2021-2022 term, it is possible that Roe v. Wade could be even further narrowed, or possibly overturned, by the time Vermonters vote in November 2022 on the proposed state constitutional amendment protecting reproductive rights.
Eric L. Davis is professor emeritus of political science at Middlebury College.

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