Proposal 5 Doesn’t Protect a Woman’s Right to an Abortion

Women in Vermont are being told Proposal 5, the so-called Reproductive Liberty Amendment, will preserve a woman’s right to choose along the lines of Roe v. Wade. This is a highly misleading claim. What the vague language Proposal 5 actually does is give the father of an unborn child an “right to personal autonomy” equal to that of the woman.

Read Proposal 5 and you will see clearly that it mentions neither women, nor abortion. It says,

“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.”

This right applies to everyone equally, men and women. So, what does that mean in practice? Here’s what happened when a spokesperson from the ACLU, in testimony before the House Human Services Committee, was asked what happens when the man’s right to reproductive autonomy conflicts with that of the woman under Proposal 5….

REP ROSENQUIST: Can you explain to me what a biological man’s right to personal reproductive autonomy looks like, and what the ACLU would do to defend that right, and what happens when a man’s right to personal reproductive autonomy conflicts with a woman’s right to personal reproductive autonomy regarding the same unborn child? Whose right prevails, and under what legal, constitutional basis under Proposal 5?

INDI SCHOENHERR (ACLU): … Each case is unique, and the facts are decided— The case is, is— Each case is unique as I’m saying, and the facts of those cases vary, so I don’t think it would be appropriate for me to comment or, like, come up with a theoretical example of where— where these reproductive liberties would be in conflict.

REP ROSENQUIST: It would seem like they would be in conflict if the man wanted the child to be born and not be aborted and the woman said, no we’re going to abort the child. That would seem like a conflict.

INDI SCHOENHERR (ACLU): We believe it is the woman’s right to do what they want with their body. I think that’s the stance we would take on that. The reproductive autonomy of the gestational parent would come first.

REP ROSENQUIST: Who says they come first? [The language of Proposal 5 does not say that. Under Proposal 5 there is no distinction of priority.]

REP PUGH (COMMITTEE CHAIR): My understanding is that when rights are in conflict, we go to court, and that is the role of the courts to decide, or a judge. So, what I’m asking – would I be correct in responding to Representative Rosenquist to say, what you are presenting is a conflict of rights. And where historically this country has gone when there are conflicts of rights is we go to court and we have confidence in the courts’ decisions. Would I be correct in that response?

INDI SCHOENHERR (ACLU): Yes. That is the correct response. Yes.

So, let’s be clear here. Prop 5 doesn’t give a woman the right choose to terminate a pregnancy. If challenged, it gives that decision – on a case-by-case basis -- to the courts, and the language of Proposal 5 gives the man an equally protected right of personal reproductive autonomy to the woman.

Many pro-choice advocates testified in Wednesday night’s public hearing (1/26/22) that they were in favor of Proposal 5 because they didn’t want politicians, or anyone other than the mother and her healthcare provider, having a say in whether or not to abort a child. Proposal 5 does not do this! In fact, quite the opposite. What Proposal 5 does, legally and constitutionally, is elevate the personal reproductive rights of the father to the same plane as that of the mother. And, where those rights conflict, a judge or a jury will decide whether the mother will carry the baby to term or not.

So, if Proposal 5 becomes the law in Vermont, understand that it doesn’t give women the right to an abortion….  It gives you the right to an attorney. If you can afford one. 

- Rob Roper is president of the Ethan Allen Institute

You can watch the full exchange on YouTube here (12:29 – 16:07):


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Enter Comment Here:

  • Kathryn Trudell
    commented 2022-02-01 10:04:51 -0500
    Rob, everyone has an opinion as to what this language means, but it is so broad that no one can say for sure, even the ACLU. It contains no definitions or limits. If it passes and becomes part of the Vermont Constitution, just wait until the lawsuits start rolling in . . . lawsuits that the State will have to defend itself against with taxpayer money. Then a liberal judge in a liberal Vermont court will tell us all what the language means. This broad, vague language is a liberal lawyer’s dream. It will open up new areas for liberal courts and groups with an agenda to wander around in for YEARS. Everything will be fluid and a feast for the courts. What the ACLU seems to be saying is that the man’s rights will be equal to the woman’s. Guess I don’t believe them. Since when can a man stop a woman from having an abortion if she wants one? And if they both have “reproductive autonomy”, the woman wins in a tie. And how will this apply to transgender men who want to identify as a woman and reproduce? Why would anyone craft such language, with no limits, boundaries, or definitions of terms? Including no lower age limit. The ACLU doesn’t know what will emerge from inserting this language in the Vermont Constitution any more than we non-lawyers do. They are giving us a legal OPINION. And since I have been told that they helped craft the language (to the best of my knowledge), they could have inserted definitions if they felt like it. But no, it is written in such a way that they will have legal lawsuits to be involved with for years and years. And no, I am not a lawyer. Just an English major who can read.
  • David Bresett
    followed this page 2022-01-29 09:16:16 -0500
  • Kevin Dougherty
    commented 2022-01-27 14:10:44 -0500
    I have been pondering just that for a while now. The proponents also conveniently ignore the simple fact that IF Roe v Wade is in fact overturned all it would do would be place the decision to allow, limit or prohibit abortion back in the hands of the states, where constitutionally it belongs.
  • H Brooke Paige
    commented 2022-01-27 12:55:54 -0500
    Lack of Good Judgement – Legislative Ineptitude ?

    Did any of the geniuses under the Golden Dome bother to contact a Constitutional Law expert to see if their Amendment would accomplish their goal OR just confuse the abortion issue further ?

    In their rush to act in advance of a perceived reversal of Roe v. Wade -the Legislature appears to have “fumbled the ball” and have given fathers an unintended voice in the abortion decision !

    This could be the silver bullet that kills the referendum before the voters this fall – who must approve the Constitutional Amendment in order for it to become the law of the land !

    H Brooke Paige
  • Rob Roper
    published this page in EAI Blog 2022-01-27 09:50:05 -0500