H.57 Abortion Rights

H.57 Abortion Rights - February 23rd 2019

H.57 Passed out of the Vermont House on February 21st with a party-line vote of 106 to 37. I voted in favor. During the two days we considered the bill on the floor close to 150 legislators spent over 10 hours debating and voting on the 12 amendments and the bill itself. With the passage of the bill, around 6:00 Thursday, I felt no elation, only relief that two days of hard thinking and tough decisions had ended.

During those two days I exchanged emails with several constituents who strongly apposed my votes on the amendments that unfolded. I regret that we found no way to accommodate their perspective, but I've found that some differences are not reconcilable.

The Politics of My Votes

Because my last name begins with a "T" I am well near the end of the roll-call votes. Before I give my "yes" or "no" there is a good chance that I will know what the results of the vote will be. This means that I can vote against something, while knowing that it will actually pass. I can provide "political cover" by voting for pro-life amendments and telling my constituents that even though I voted for the final bill, I did support some of the amendments their side proposed. Advocacy groups that track votes will also see me as more flexible and perhaps not appose me so rigorously at election time. The Democratic party leadership may also see me as not a certain vote for the party line. That can be both good or bad.

As each amendment to this bill came to the floor I looked for that political cover. I really wanted to be able to vote for an amendment or two. I listened carefully to the debate. But each time I found myself, in all honesty, unable to to support the amendment. They did not agree with my own reasoning and the sense I had of what a large majority of my constituents wanted.

More Information

Details of how each legislator voted on each of the many roll call votes can be found online. The House journal for both Wednesday and Thursday describe most of the amendments and the votes on each.

The Big Issues

In the course of the debate on this bill and from several followup discussions, I learned a lot about abortion.

Obtaining an abortion is not easy.

I spoke with several friends and a representative of Planned Parenthood. I asked specifically, what happens if a young woman, a minor, believes she wants an abortion. Assuming she does not want her parents to know about it, where does she go? To whom does she turn? Prior to Roe v. Wade, when abortions were illegal in many states, she would have to search out someone willing to break the law, essentially a criminal. Today, in Vermont, she could go to Planned Parenthood or some other organization handling such matters.

What happens when she walks in the door at Planned Parenthood and says that she may want an abortion?

My understanding is that one of the first questions she is asked is if she has an adult with whom she can discuss the issue. In nearly all cases, there is someone. It may or may not be a parent. It may be a teacher, parent of a close friend, relative, or religious leader. She is urged to consult with that adult.

A medical examination may ensue to determine if the woman is indeed pregnant, and to determine if there are any other issues at play: sexually transmitted diseases, drug abuse, etc. Questions are also asked about the woman's economic and social condition. Is she living independently? Will she be able to do so during and after pregnancy if she chooses to have the child? With more information, options are presented. Abortion is not the only answer.

Planned Parenthood and, most likely, any other such organization, provide information on adoption, housing, nutrition, counseling, costs and many of the services available to pregnant women.

If the women still requests an abortion the next step depends on the length of time since conception. Planned Parenthood clinics may provide abortion services up to 19 weeks into pregnancy. In the very early stages of pregnancy this can be a series of medications, otherwise it is surgical procedure. If the pregnancy has been for more than 19 weeks, Planned Parenthood will refer the woman to a hospital for the procedure.

The health care world thinks of abortion as health care. And like all of health care it is heavily regulated. Specific standards of care have been developed and are in place. Medical professionals, in consultation with the mother determine what is to be done. Licensing requirements for nurses, doctors and other medicos require knowledge and behavior that follow strict guideline. As a result, an abortion, obtained within the world of health care is one of the safest procedures. The obvious retort is that it is safe for the mother, but deadly for the fetus.

I was surprised to learn that if an abortion is provided around 23 weeks, a death certificate is issued for the unborn. I was also surprised to learn the following from an interview between a VTDigger reporter and Dr. Ira Bernstein, the chair of obstetrics and gynecology at the University of Vermont Medical Center:

"Once we get to 23 weeks of gestation for all comers, we require a broader review of the request. And that means we include our pediatricians, our neonatologists who specialize in newborn care, hospital ethicists, geneticists, OB providers and our chief medical officer, all of whom can review the details of the case and make a decision whether it’s reasonable to proceed."

The transcript of that interview is available by clicking the "Read Full Transcript" link at the end of the article. It's a good article.

At what age is this a human life?

One of the central questions raised by several of the proposed amendments was: when does a human life begin? At conception? At 23 weeks? When a heartbeat is detected? When pain can be felt? At viability?

Nearly anyone who has experienced pregnancy or been the one that fathered a pregnancy knows that what is growing inside a woman is something special. This is not a simple bundle of cells. Few people love and cherish a bundle of cells. To the mother, the father, the grandfather and mother and friends this is a human life. It began as soon as its existence was confirmed. It is loved. Loosing it, and that love, through miscarriage or abortion can be traumatic.

But drafting legislation can be a cold business. Laws that can determine if a person is jailed must be specific. Regulations, licensing rules, protocols and standards of care must be as cut and dry as possible. The logic must be tight.

Viability

Much of the debate of H.57 hinged on what "viability" means. When is the life within a woman viable and perhaps, therefor, worthy of protection from abortion? This is not clear and subject to change with advances in the medical profession. Is to 23 weeks? 24? Is that 24 weeks from conception, from the last menstrual cycle, from some physician-determined date?

Some legal questions

If a pregnant woman is in an automobile accident and the child dies, can the person responsible be charged with manslaughter?

If a pregnant woman smokes, abuses drugs, drinks alcohol, or eats junk food, might she be charged with child neglect?

There were other concerns raised. In most cases these are interesting questions to be brought out during lulls in dinner conversations, but when voting on laws they have to be considered carefully. The ramifications are significant. And a "yes" or "no" decision must be made.

Late term abortions?

What does this proposed law say about late term abortions? Basically nothing. Does it make them legal? No. Does it make them illegal? No. Here's what the proposed law says:

"The State of Vermont recognizes the fundamental right of every individual who becomes pregnant to choose to carry a pregnancy to term, to give birth to a child, or to have an abortion."

There are not qualifications about trimesters, weeks of age, or threat to the mother's or child's life. But it is important to see the complete picture. The VTDigger article, particularly the full interview, go into detail on this.

Here is something similar:

Currently, there is no law saying you can't do what you want with your left arm. This can be codified in law: "Every individual has the right to do what they want with their left arm?" Does that mean it is legal to demand of a doctor that s/he cut off your left arm? No. No doctor would do it. The doctor would loose his/her license to practice. No hospital would allow it because it would violate standards of care and any number of regulations. It might even be possible that the doctor could be charged with some crime: reckless endangerment?

Occasionally a doctor, in a hospital, does cut off someone's left arm. It is done for justifiable medical reasons. It is the same with abortions late in the pregnancy.

This also answers the question about doctors coming to Vermont in order to perform late term abortions. We're talking about a surgery. They could not do it in a licensed hospital for the reasons explain above. And I'm reasonably sure it is against some law to perform surgery on another person without the proper credentials and facilities.

Finally, this might provide insight into what happens if such abortions are indeed illegal by law. What if it were illegal to have your left arm cut off, even by a doctor in a hospital. The only way for you to get it done would be to seek out someone willing to break the law and perform the surgery secretly beyond the sight of health regulations, codes of ethics, etc. etc.

Who Decides?

Another central issue in the abortion debate is who decides when a woman can or cannot obtain an abortion. Several amendments concerning parental consent and/or notification were proposed. Those pertained to minors.

Pro-life advocates would like to know when their offspring are considering an abortion. They would also like to assure that an adult will contribute to such an important decision. Recent legislation hinging on the fact that adolescent brains are not fully developed contributed to this discussion.

In a different, better, world these points would be convincing. But with our knowledge of incest, domestic assault and abuse this seems too burdensome and perhaps dangerous to the young woman. Amendment modifications attempting to get round those problems just raised others.

Another side of the Who Decides issues came up in discussions of late term abortions. At that point in the development of the fetus, the mother has carried the child for at least six months. She is reminded 24 hours a day that she is carrying that child. She may well know the sex, have purchased the first toy and blanket, painted the nursery and had endless talks with friends about what name to choose. To consider losing that child is terrible and painful. That is not the time for state legislators to insert themselves into the discussion and say under what conditions she can or cannot have an abortion. This deeply emotions decision can only be made by the women in consultation with her physician, her pastor and/or anyone else she considers helpful.

What does the bill propose to do?

We have been told repeatedly that the bill "codifies current practices." But what does that mean? And is it necessary?

The reason for the bill is a concern that Roe v Wade will be overturned by the supreme court. Such a decision would open the way for significant restrictions on abortion access. But it does not mean Vermont suddenly would have those restrictions. This is a state by state decision. Vermont, is acting first to assure it is understood that this is the way reproductive rights are defined in Vermont. This is current practice, backed up by statute.

Conclusion

There are those that say the time and resources put into this bill were a complete waste. Nothing has changed. There are others that say we have clearly stated every Vermonter's basic reproductive rights. I go back and forth.

Generally, at the beginning of each biennium there is a resolution that re-affirms Roe v Wade. It's a single roll-call vote that puts everyone on the record as to their position, in general, on abortion. I must confess that doing this instead, raised important issues and allowed for intelligent debate on the many facets of abortion law and practice. Though the resolution takes about an hour and this took ten hours, it may well have been worth it. But I look forward to moving on to the more practical issues of capital expenditures.


The Amendments and my vote explanations

Here's a list of the proposed amendments and some explanation of my "no" vote on each.

  • A viable human fetus is a person. I voted against this because or the definition of viable being problematic and because of the change this would make as to who can be charged with what crimes.
  • Abortions must be withing first 24 weeks only and not when the fetus is viable. I voted against this, again, because of the viability definition and because I do not want legislatures determining when a woman can or cannot have an abortion. I leave it to the woman and medical professionals.
  • Restricting those who can provide surgical abortions to licensed physicians and licensed osteopathic physicians. After some discussion, this amendment was withdrawn. There are currently enough restrictions on who can provide surgical abortions.
  • Impose a 48 hour waiting period after the decision to proceed with an abortion. Also requires informed consent, which, for a minor means parental consent. The amendment also could result in doctors being sent to jail if a jury disagrees on why the abortion was allowed.
  • Required parental consent in order for a minor to receive an abortion. This had a rather complex procedure to get around the issue of abusive parent and confidentiality but it involved a probate judge and hearings. It was too difficult to implement.
  • Required abortion providing facilities to be regulated, inspected and licensed. Also had requirement on people working there. I voted no because the restrictions were too onerous for a facility providing medication abortions only. I also think the current amount of regulation and over site of abortion providers is adequate.
  • Required an ultrasound and gives the patient an option to see the ultrasound and hear the heartbeat prior to an abortion. I voted no because vaginal ultrasounds performed in the very early stage of pregnancy are extremely intrusive. The additional cost to the patient or the medical system was also a concern. If a woman wants an ultrasound, I suspect she can get one.
  • Partial Birth Abortion Prohibition. I voted no, but came close to voting yes. The reasoning was that if the goal is to codify current practice, this too should be codified. It is banned by federal law. However, this prohibition is already in law (not just in practice), so it need not be added to our laws.
  • Disposition of Fetal Remains. This amendment was determined to not be germane as it did not address the right to an abortion. It was dropped.
  • Parental notification. This amendment tried to improve on the previous Parental Consent amendment but still described a process that was too complicated and time consuming. These amendments that bring in the Judiciary system when the parents are out of the picture, force the person to explain personal sexual actions to a judge, making an emotional process that much more difficult. When the committee on the Judiciary reviewed this amendment they took testimony from the Chief Justice of the Vermont Supreme court. He questioned its constitutionality and work-ability. Confidentiality is also key to making sound health care decisions.
  • A crime to kill a viable fetus. I voted no, again because of viability issue. This amendment was interesting in that it said that if you guarantee the right of a person to carry a child to birth as H.57 purports to do, then anyone who unlawfully interferes with that right should be punished. The person who presented this amendment was NOT saying that an abortion was an unlawful interference. Abortion providers would not be subject to prosecution, but those that killed a fetus through a traffic accident etc. might. I voted no because the legal ramifications are uncertain.
  • This amendment recognizes a fertilized egg as the beginning of a human life and confirms that Vermont prioritizes the mother's choice over that life. Another interesting one upon which I almost voted yes. However it was pointed out that though the fertilization of an egg is required to start a life, it may not be a life. It could be a tumor. This also goes beyond the intent of the bill which is only to codify existing practice. The committee on the Judiciary confirmed that the intent portion of the bill has meaning in law. Confusing the intent, confuses the meaning and that seems to be what's happening here. I voted no.
  • Provide for abortions only up to the 24th week or when not viable otherwise provider is accused of professional misconduct. I voted no because of the viability issue. It also makes the medical providers the gatekeepers as to who may receive an abortion. The woman should be making that decision. Others felt that this would have a 'chilling effect' on providers. The intent of the law is to keep abortion free of restriction, not add more.

There was a roll-call vote on each of these amendments.

February 2nd 2019 entry

This bill was introduced on floor on January 22nd 2019 and referred to the House Committee on Human Services. The bill is in response to concern that changes in the US Supreme Court might result in court decisions that fundamentally effect the availability of abortions in the country.

The Current Legal Landscape

The legislature's legal council (Leg Council) provided a report to the Committee on Human Services describing Vermont's current law regarding abortion and the regarding minors. Vermont's current legal status regarding abortion is as follows:

"In Vermont, there is an unrestricted legal right to get an abortion regardless of age or marital status. There is no requirement that a person notify or get permission from a parent, guardian, or spouse prior to getting an abortion. Vermont has no statute that creates an explicit right to abortion. . . . "

Leg Council's report seems to say that women under the age of 18 must have "informed consent" in order to obtain an abortion. There are a number of ways described in the report that a minor can have such consent.

What about Roe v. Wade?

Leg Council's report give a summary of how Roe v. Wade determined what a state could and could not regulate with regard to abortion.

  • State's cannot regulate abortions during the first trimester, because it represented a private medical decision between a woman and her doctor.
  • State's can regulate abortions after the first trimester. When the fetus is viable the state’s interest permits it to regulate and even proscribe abortion except when necessary for the preservation of the life or health of the person carrying the fetus.

What H.57 Does

The bill, as introduced, guarantees individual reproductive rights by encoding the following into Vermont law.

Fundamental reproductive rights

  • Every individual has the fundamental right to choose or refuse contraception or sterilization.
  • Every individual who becomes pregnant has the fundamental right to choose to carry a pregnancy to term, give birth to a child, or to have an abortion.
  • A fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.

Update 2/9/19: My understanding is that the House Committee on Human Services voted to change the bill by removed third bullet item above. That may be an amendment when the bill comes out of the Judiciary Committee and is presented on the floor for a vote.

Interfering with those rights

The bill further forbids public entities from interfering with those reproductive rights:

  • A public entity . . . shall not deny or interfere with an individual’s fundamental rights to choose or refuse contraception or sterilization or to choose to carry a pregnancy to term, to give birth to a child, or to obtain an abortion.
  • No State or local law enforcement shall prosecute any individual for inducing, performing, or attempting to induce or perform the individual’s own abortion.

Access to abortion

And finally, a public entity cannot restrict access to an abortion. It cannot:

  • Deprive a consenting individual of the choice of terminating the individual’s pregnancy.
  • Interfere with or restrict, in the regulation or provision of benefits, facilities, services, or information, the choice of a consenting individual to terminate the individual’s pregnancy.
  • Prohibit a health care provider . . . from terminating or assisting in the termination of a patient’s pregnancy
  • Interfere with or restrict, in the regulation or provision of benefits, facilities, services, or information, the choice of a health care provider . . . to terminate or assist in the termination of a patient’s pregnancy.

The "Partial Birth Abortion" controversy.

H.57 states that a woman must be able to terminate her pregnancy at any time. Yet, the 2003 Partial Birth Abortion Act prohibits that procedure. Is this bill in conflict with federal law?

Not really. Partial Birth Abortion is a procedure very rarely used. There are other, better, ways to perform an abortion, so no one would request it be done in this manner. In fact, few doctors would agree to it. It is a gruesome procedure and will remain against federal law in Vermont should H.57 pass.

Leg Council's report states the following:

"In the event that a provider in Vermont knowingly performed a “partial-birth abortion” as it is defined by the Act in violation of that federal statute, the provider could be prosecuted as provided for in the Act, and regardless of the provisions in H.57. "