Madam Speaker,
I rise today with no expectations or intent to change the mind of members on their votes. But I hope to convince every person on either side to leave slightly less certain than when they came in.
Eric Metaxas, author of Seven Women and the Secret of Their Greatness, in 2015, said,
“Each era has the fatal hubris to believe that it has once and for all climbed to the top of the mountain and can see everything as it is, from the highest and most objective vantage point possible.”
We have been certain in the past:
It was a norm to take land and kill its people; it was a norm to sell people; it was a norm to sterilize those we believed should not be procreating.
None of those actions were taken in the belief of doing wrong.
But people in power make decisions; the onus is thus on us to carefully examine our assumptions.
Our human race, worldwide and for centuries, has been wrestling with the issues of women’s rights to their bodies and abortion, struggling with the difficulty of achieving any kind of a balance.
Roe v Wade reflects on that, citing the long history of differing and changing perspectives and demonstrating why it is so hard.
It is not random chance that such great division has lasted for so long and to such depths of convictions. It is because the issue is, itself, so very hard.
One way to examine our own assumptions is to look to elsewhere in the world, and the laws of other countries, especially those with similar values of pluralism as our own.
Where does the right to reproductive autonomy protect unlimited access to abortion without any limit on gestational age?
The only nations allowing unrestricted elective abortions at any time are Canada, China, the Netherlands, North Korea, Singapore, and Vietnam.
Missing from that list are most of those we think of as among the most progressive nations, and in fact, many of them have some mandatory threshold even for the earliest abortions.
A few examples:
In Germany, first trimester abortions are only permitted under a condition of mandatory counseling 3 days in advance; they are permitted later in pregnancy only if the pregnancy is found to pose significant danger to the physical or mental health of the pregnant woman.
But Germany is perhaps not the best example. We would expect great caution after its Nazi history; abortion was severely punished for Aryan women but permitted where the parents were Jewish -- it sharply distinguished between life that was deemed worthy, and what were called, ‘unworthy lives.’ In 1935 the Nazis introduced a ‘eugenic justification’ for abortion in the criminal code, and in 1943 they supplemented [it] with a clause demanding the death penalty for abortion ‘in cases where the vitality of the German people [was] threatened.’
So let’s look at instead to a few other samples:
Sweden permits abortion on the request of the pregnant woman only until the 18th week. After the 18th week, it requires an evaluation and permission through the National Board of Health and Welfare which must find an exceptional circumstance. None are permitted after viability.
In England, abortion is allowed during the first 24 weeks of pregnancy but those must be for socio-economic or health reasons-- (that limit was reduced from 28 weeks to 24 in 1991 to reflect advances in technology that enable the very premature to survive.) Beyond that, it is only permitted for significant medical reasons.
In Switzerland, abortion is legal during the first 12 weeks of pregnancy, upon a condition of counseling, for women who state that they are in distress. It is only legal after 12 weeks for threat of severe physical or psychological damage to the woman.
So if we see this as an easy question – as reproductive rights preeminent in all circumstances -- we stand almost alone against views worldwide and,
We stand against Roe v Wade
Because, for those who look to Roe v Wade as bedrock:
It struggled with those choices and did not utterly reject any right of society to prioritize the value of a developing life.
In finding a role for the right of privacy, it also said,
“The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.”
And it then flatly rejected the argument, quote, “that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”
This proposed constitutional amendment denies balancing.
It locks in a restriction on state interference unless there is a “compelling interest.” That still leaves the decision to the courts if the court deems it a situation where constitutional rights are in conflict, but it becomes the only constitutional right which pre-establishes the standard for how the court must balance rights, giving reproductive autonomy pre-eminence in a way not given to any other right.
The “compelling interest” and “least restrictive means” language is a test that the courts established for how they weigh competing rights.
By inserting that language, we prescribe how the court must interpret the constitution. Yet at the same time, we also turn over to the courts a completely new, undefined term to interpret – “reproductive autonomy” – requiring multiple, unforeseeable, court interpretations in the future.
Although abortion is never directly referenced in the language, we know that in current legislative intent, abortion is the core impetus for this proposal. So, I want to turn to 3 issues within that particular debate:
-- Is a developing embryo or fetus a person, who therefore has rights?
-- Is the choice of abortion a reproductive health care right, a matter of equity, potentially putting two rights into conflict?
-- And then, is arguing for one perspective forcing the religion of some, over other people?
First, is this embryo, then fetus, a person?
It is obviously living, and human, not turtle – but the question is when “personhood” attaches to it.
If we divide those -- between human life and having personhood – we are saying some human lives are not fully people.
Not yet fully persons.
Where have we heard that before in our history, as a way to dismiss the centrality of equality among human lives, in order to claim the superiority of the rights of one group over the other?
The history of humankind is deeply engrained with the stain of dividing between fit and unfit, those deemed less than fully human.
Our own Supreme Court once allowed Black lives to be counted as less. The Supreme Court also allowed “unfit lives” – Black, poor, indigenous, sexually different, disabled – to be denied the right to procreate, upholding eugenic sterilization laws with the words,
if I may quote, Madam Speaker,
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”
We have always used different labels to distinguish the wanted and the unwanted, so that we keep the unwanted as not fully one of us, not fully persons.
When a wanted pregnancy ends in a miscarriage, we say, “she lost her baby.” No one says she lost her embryo or her fetus. Because it was wanted, and that defines its humanity as a baby.
Parents now share pictures of their babies in the womb by ultrasound – “look at our baby,” not “look at our embryo” -- yet many recoil at the thought of requiring someone to look at the same photo before deciding to abort. We don’t want that humanity to be visible if it is unwanted.
Do we really want to use being wanted or not to distinguish between two kinds of life in the womb: one a fetus, not a person, and the other a human baby?
Second, is this an issue of health care and reproductive rights?
People biologically have testicles and ovaries for the sole purpose of reproduction. The womb was biologically designed to nurture and protect the embryo that results from joining of sperm and egg.
It was biologically designed for that purpose inside and as a part of another person’s body. The fact that biology leads to the start of an embryo does not mean it is being compelled on someone. In most cases there is at least implicit consent to the fact that it might happen, even if not intended. Individuals, inherently, do control their reproductive decisions: that right to choose whether to reproduce and create offspring. But once that biological reproduction has already occurred because conception has occurred, that choice has been made.
Simply because the embryo’s survival depends upon the protection of the womb does not make it the property of, or merely an appendage of the person bearing it. Removing it – which results in its death – is not reasonably defined as health care.
Third: Am I forcing my religion on others by perceiving and arguing for these rights? Roe v Wade doesn’t assert that. It underscores the right of a society – not a religion -- to have an interest in a developing life.
Who I am, and how my conscience is formed, is about my personal integrity in responding to the world. It is not about isolating religion from the rest of my self. A democratic dialogue is about sharing competing perspectives about our world views in trying to reach social consensus. Those perspectives include the ethics, morals, and yes, religion, of any person engaged in it.
Demanding that people segment out their religion from their selves as criteria for entering public debate is wrong. A component of a person’s belief system is not being imposed on others any more than any majority imposes its perspective on others when it shares its values in the effort to build the values of a society – values ultimately established as laws.
If there is a risk of imposition of values, it is in the refusal to adopt conscience protection for health professionals who believe that participating in abortion violates their ethics or their religious views, telling them they cannot choose a medical profession if they are not willing to participate.
Not too many years ago we argued for no smoking laws in bars not on public health grounds, but on the rights of a person to choose a profession as bartender without being subjected to tobacco smoke.
Yet we have refused to protect the right of a person to choose a profession in health care without being compelled to uphold access to abortion. Adopting Proposal 5 without first adopting conscience protection establishes a legislative intent regarding its priorities. Conscience protection will be argued as an unconstitutionally imposed obstacle for some individuals’ decisions on their reproductive autonomy. Even laws that allow for licensing standards or hospital regulations or ethics standards may be found to violate the constitution as obstacles.
I cannot accept that we are not deeply harming society by disregarding life in the womb, and I see no compelling rationale to draw the line between life and human personhood at birth, any more than at the transition from embryo to fetus, or the transition to full cognitive maturity at what we now recognize as not occurring until the mid 20’s.
That line defining “maturity and responsibility for behavior” has shifted with science… why would we not see shifts over time in the rational recognition of attachment of personhood? Quickening has long been replaced by ultrasound.
But I also cannot contemplate an image of a person in restraints for 9 months, being forced to carry, unwanted, that other person in their womb. It is painful to think that the liberty and dignity to determine one’s own life course could be radically altered by something as potentially unpredictable as the failure of a contraceptive.
And I believe no compassionate society would ever criminally punish a person who acts on the desperation of feeling trapped by their own body having betrayed and taken control away from them.
So yes, it does make a difference if that other life is being sustained within someone’s body who does not want it there.
But that doesn’t turn it into being solely about women’s health care or reproductive freedom.
Refusing the recognition that this contradiction exists is the wrong way to address this hard, hard issue, because it takes it outside of anyone other than the person who is carrying that baby and denies the validity of society having any interest in the liberty and dignity of that other life.
I have no solution between these colliding realities.
50 years ago as a college freshman when Roe v Wade was decided, I did think it was simple and clear: the murder of a human life, beginning at conception, could never be acceptable.
It is not simple and clear.
Our world offers no solutions – world views have been in debate for decades, for centuries; views throughout the world remain torn.
I believe that is the core of what is wrong with Proposal 5.
It takes a deeply ethical dilemma that divides good people – all of them good, caring people – and it chooses the most absolute extreme of one side of a debate that has and continues to divide society so passionately and profoundly.
It is out of step with a world that continues to be conflicted.
It claims the solution as simple: that it is only about reproductive freedom and nothing else.
And it proposes that view to be engraved in our constitution.
Good people have in the past made grievous mistakes and violated human rights -- whether through imperialism or slavery or eugenics. Perspectives of time make us recognize the evil, but in their time they were in accord with their society’s values.
In its time, colonialism and the massacre of indigenous people was not recognized as wrong, because conquerors had the right to claim new lands and new property rights and to kill for that purpose.
In its time, many leaders of our country did not recognize slavery as a fundamental wrong, because those lives were not recognized with equivalent value or humanity to their own. Slaves could be hunted down and killed because property rights were at stake, and the right to own property is a fundamental right.
In its time, many respected citizens did not recognize eugenics as wrong, because people unfit to reproduce did not have equal rights, and society had a right to prevent unwanted children from being born and being a burden on society.
Planned Parenthood removed the name of Margaret Sanger, a eugenics supporter, from its New York affiliate building in 2020 with an acknowledgement that it was,
“both a necessary and overdue step to reckon with our legacy and acknowledge Planned Parenthood’s contributions to historical reproductive harm within communities of color.”
In other words, the planning of parenthood was part of an agenda to curtail the growth of unwanted groups of people, thereby identified as persons of lesser value.
I cannot justify assigning value, and discriminating, based upon age or degree of dependency on the body of another person any more than upon race, sexual orientation, intellectual acumen, disability, the ability to conquer, political power or color of skin.
It is irresponsible of us to propose an all-or-nothing, extreme perspective to the voters of Vermont. Those who perceive a need to protect Roe v Wade will be forced to go far beyond it, to a far more extreme position.
I will vote no on Proposal 5.
But we are all here today with the intent to do the right thing – to protect human rights.
To protect human rights.
We simply see those rights under very different lenses.
What will time tell us about decisions we make in our era?
What will we need to apologize for; be forgiven for; be asked to make reparations for?
We don’t know. We can’t know.
But we should not have that fatal hubris to believe that we have once and for all climbed to the top of the mountain and can see everything as it is, from the highest and most objective vantage point.
The way any of us see things is not necessarily everything there is.
Let us all have the humility to leave today a slight bit less certain that our perspective can stand the test of time.
Thank you, Madam Speaker
