Week 17 : May 7th to May 10th

Behind the scenes

Rampant rumors, strategic speculations, preposterous predictions, rapid re-adjustment, lots of unknowns. End-of-session is here. Committee chairs stop each other in the halls, probing for updates on what bills are where, what has changed, what has stayed the same, who's responsible for what and where do we go from here. For some, this is what it's all about . For me it's frustrating.

Close to the End

Bills are flying back and forth from House to Senate. Committees of conference are meeting to hash out compromises. Time is short, and for those in leadership the pressure is on. Will any of the political promises be met? Will this super-majority of liberal votes make any progress? No one really knows. But next week is slated to be the end of the first year of the biennium so what doesn't get done then will have to wait until January of 2020.

Constitutional Amendment

This week we dealt with Prop 5. That a proposed Vermont Constitutional Amendment with a "right to personal reproductive liberty." Earlier in the session we passed a law (H.57). "An act relating to preserving the right to abortion." Both are designed to codify and protect Vermont's current legal landscape regarding abortion. The details of H.57 are explained on my controversial bills page. I may have also previously explained the complicated process of amending Vermont Constitution. It ain't easy and takes four or five years. Prop 5 is just out of the gate.

What was interesting to me during this week's debate on Prop 5 is the lack of understanding by several members of the House as to the difference between an Article of the Constitutions and a State Statute. I confess I had to think about it a bit to figure it out. When you're dealing with existing laws and an existing Constitution it seems pretty straight forward. But from the other end, when you are actually creating those laws and cvonstyitutional amendments it's quite different.

Proposal 5

Proposal 5 is a pretty simple amendment. Here it is:

Article 22. [Personal reproductive liberty]

That the people are guaranteed the liberty and dignity to determine their own life’s course. The right to personal reproductive autonomy is central to the liberty protected by this Constitution and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.

That's it!

When debating laws legislators naturally look for unintended consequences. One way to understand a law is to imagine its implications and talk about examples. We did that, ad nauseam, with H.57. If we pass this law, will late term abortions be legal? Will Vermont become a haven for doctors performing abortions that would be illegal everywhere else? When debating Prop 5 the temptation was to do the same. If we pass this amendment will it guarantee that Vermonters will always be able to get abortions at any stage of pregnancy? What about the father of the child; what about his personal reproductive autonomy? Will he be able to force the mother to have the child, or to have an abortion? But that line of questioning just doesn't work with constitutional amendments.

What is personal reproductive autonomy?

There is no definition of Reproductive Liberty or Autonomy in the proposal. But when I began to look at this new right in the context of existing rights, the lack of a definition made sense. The first amendment to the U.S. Constitution states:

"Congress shall make no law . . . or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble."

There is no definition of freedom of speech or of speech itself. Those questions used to understand a law, are of no use when working with constitutional amendments. Should we vote to not have a freedom of speech because it might allow someone to yell "Fire!" in a crowded theater?

Compelling state interest

Proposal 5 has that interesting caveat: you cannot infringe on this new right unless there is a compelling state interest. What does that mean? There were several questions during the debate about this. One member asked the presenter of the Proposal what examples she might give of a compelling state interest. The presenter could not come up with any. I came up with several, rather quickly. A law against inciting a riot is a compelling state interest that restricts the freedom of speech. All of our basic rights are limited by the many compelling state interests necessary to maintain an orderly society.

The Courts

The key to understanding the difference between a law and an article of a constitution is to understand the role of the courts, The Article is a broad principal putting forth what a court must consider when determining a law's constitutionality. The courts must balance an individual's reproductive autonomy with any compelling state interest and rule on whether a law is constitutional. The court cases will define more precisely what reproductive autonomy means.

The amended Vermont constitution will not prevent a person from doing anything. No one is charged with breaking an article of a constitution. The amended constitution will not prevent the General Assembly from writing or passing any law. We could pass a bill making all abortions illegal and the governor could sign it into law. I learned last session that legislators do not determine the constitutionality of a law. We can pass any bill we want.

It's when the law is unforced and there are court cases and appeals that constitutionality is considered. That's when a law can be determined unconstitutional. There was not enough compelling state interest to support the enforcement of the law in that manner.


So what does all that mean? How do we consider a constitutional amendment that declares a new right. I can see the possibility of someone proposing that there should be a Vermont Constitutional amendment declaring that Vermont dogs have a right to life itself. No Vermont dogs could be euthanized unless there is no compelling state interest in doing so.

What does a constitutionally declared right really do? It provides a court-of-law check on any law relating to that right. It forces lawmakers to at least consider the constitutionality of the laws they right. Why pass the law if it's going to get struck down in court?

But courts change and interpretations of law change. A law that is unconstitutional now may be permissible in the future. The state's compelling interests change. That does not mean that having rights declared in a constitutions is meaningless. The declaration of those rights gives the courts a clearer definition of the test they must use when judging laws. Does this law infringe on an individual's reproductive autonomy? Is there a clear compelling state interest in that infringement?

I voted "yes" on the proposal.

Next Week

A conference committee (House and Senate) will continue work on resolving their differences on the state budget. There should be a vote on the result this coming week. The Capital Bill is also in the process of adjustment, though outside a committee of conference. Other important bills are subject to this Senate vs. House conflict. We will do a lot of waiting on conference committees, then vote and wait some more.

We're in session all five days this week in order to get things done. We usually do not work on Monday. The end is in sight.