Commentary, Opinion

We should be concerned about Proposal 5

By Anne Donahue

Editor’s note: Anne B. Donahue is a House representative for the Washington-1 district (Northfield, Berlin).

The importance of conscience protection for health care workers, most often in the context of permitting hospital staff to request to be excused from participation in abortions, has broad public support and is endorsed by the Vermont Medical Society.

Yet few have addressed the current risks of erosion of those rights of conscience in Vermont if Proposal 5, the “reproductive liberty amendment,” were to become a part of our state’s constitution.

There should be deep concern about the impact that Proposal 5 could have on our state’s hospitals, health care delivery and workforce crisis through overturning such protections.

There are inaccurate perceptions about the scope and intent of this constitutional amendment, as reflected in a November article in VTDigger which described its purpose as to “protect the abortion rights spelled out in the U.S. Supreme Court’s 1973 Roe v. Wade decision.”

In fact, the unusual wording of the constitutional amendment would do three key things: it would protect any abortion for any reason until the moment of birth (unlike the balance of state interests created in Roe for third trimester pregnancies), likely rendering null any individual hospital’s abortion policies including conflict of care policies; it would extend protection to any health care service that relates to ‘personal reproductive autonomy’ with no known definition of how far that concept might extend; and it would turn any debate on that high bar of what constitutes a “compelling state interest” over to the Vermont courts.

It offers no final word, but rather would be subjected to any number of future court interpretations.

I have again introduced a bill – H. 497 — for conscience protection for health care providers this year. Vermont is one of only two states that does not provide it by law.

Given the breadth of Proposal 5, there is a significant risk that hospitals could not independently choose to assure such protection. Extant shortages in medical professionals, particularly in ob/gyn practice and in nursing, would worsen as some providers decide to leave their chosen professions. In fact, it might be deemed discriminatory to permit conscience protections – or even for any hospital to fail to perform abortions.

If the Legislature fails to act on conscience protection before voting to move forward with Proposal 5 this year, it will form an explicit legislative intent in the record that could inform the court to rule that a future-passed conscience protection bill would be unconstitutional. Even if such a bill passes, it is not clear that it will withstand the breadth of the amendment, but I think it is still worth the effort.

I hope that Vermonters will actively support this legislation.

The issues buried within Proposal 5 warrant consideration of the impacts on quality health care before making decisions about the constitutional change. Conscience protections and the impact on the workforce are a prime example of unforeseen consequences.

Full consideration of the implications – and the ways in which they go far beyond the instinctive appeal that “protect Roe v. Wade” has for many people – is crucial.

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