 Welcome viewers to our ongoing program Focus. Coming to you from Channel 17 Center for Media and Democracy here in Burlington, Vermont. I'm your host Margaret Harrington, and viewers, let's welcome our special guest, Representative Anne B. Donahue. Good morning. From the Vermont legislature. Welcome Anne to our studio. Thank you so much. Thanks. And the subject that we have on tap today is the Vermont abortion law is bad legislation. Part four. So, and could you, or Representative Donahue, would you bring us up to date on the Vermont reproductive health law, also known as the Vermont abortion law, which was signed into law this last legislative session? Sure. And one of the things I want to really clarify from the get-go is there were two major initiatives that happened in the legislature this year. And that's confusing to people and it's really important because they have sort of a different focus and a very different potential long-term impact. So the first is what you've referenced, which was the bill age 57 and then, you know, it gets a different number after it's passed into law, so it's now Act 47. The separate one is the proposal for a constitutional amendment. Now, in contrast to what was signed into law with Act 47, a constitutional amendment has a much longer process, so it just started the process by being passed by the legislature this year, has to come back in a new biennium, in other words, actually in two years, be passed again by the legislature and then it goes to a statewide public vote. So people will start hearing a lot more about that in a couple of years when it's coming up for the public vote, the referendum. But both those things happen this year. And it's significant that they both happened at almost at the same time, right? I think it is significant. I think one of the important things for people to realize is the politics involved and we don't like to think of politics, that seems to be like a dirty thing. Fortunately, in Vermont, most of our politics are very respectful and we disagree often or not all the time, not even most of the time, but often. But we do it respectfully. This bill didn't have any real substantive purpose. What it really was was very much a political statement and it was a political statement that says we are going to be the heroes and protect the women of Vermont from this assault on their rights on the federal level. But the problem is there was no assault on rights in Vermont on the federal level. There is no risk that was being presented. But there was a fear. Many women of Vermont were very fear because of the national discussion and debate and the current administration, current Supreme Court makeup. So there was this fear factor which gave the opportunity for people to step in and say, going to be the hero, going to protect your rights against all this national stuff. And the reason that there was no state issue is that we have our own state constitution and our own state laws. And the federal constitutional ruling way back, Roe v. Wade, was what states are permitted to do to restrict and not permitted to do. Never said you must restrict or you must pass these laws. It's what you can or can't do. Vermont chose from the start not to do anything to restrict. So there were no restrictions in Vermont. And even if the Supreme Court changed course and said, gee, the restrictions can be far greater. We made a mistake. It remains what they can do. And Vermont had already determined its Supreme Court had ruled Vermont's laws unconstitutional under the Vermont Constitution. And the legislature chose not to pursue any new laws that in any way restricted any abortion. Those rights existed. Those rights were not under threat at all. But the rights were never codified. That's right. They weren't in statute, but they didn't need to be in statute. They were protected by a constitutional decision in Vermont. And there was no requirement to enact anything. The only thing one would have enacted would have been a restriction and none was enacted. So enacting something saying, there shall be no interference, was doing nothing to change the status quo, nor does it lock anything in because anything passed by statute can be changed by statute. So it really was purely an ability for people to affirm. I believe that this is the right choice for Vermont. But the statement or the impression that was being created that we are protecting rights actually wasn't true. There was no need to do anything protective in order to protect those rights. But it allows people to say, I saved you. And it was an affirmation of that policy. So people who wanted to go on record saying, I affirm that I support this, it gave that opportunity, saying, no, I don't want to make that affirmation. Actually didn't mean that you dispute it or disagree with it. It just said, I don't want to make that affirmation because I think maybe Vermont policy goes too far. Roe v. Wade allowed for some balancing of interests. And Vermont had always chosen not to do that balancing. And I think that's one of the other important things for people to realize because they think that we are protecting and supporting Roe v. Wade. And Roe v. Wade said something very, very different from what the Vermont new statute says and from what the proposed constitutional amendment says. And I want to read you an excerpt from Roe v. Wade because it's really critically important. Everyone knows that Roe v. Wade found that the right to privacy, which already had been in existence under constitutional law for a number of years, and had been laid out in a number of different circumstances. And I'll list directly from the Roe v. Wade decision saying, here's what we already decided in terms of a right of personal privacy. We decided it had to do with marriage, it had to do with procreation, it had to do with contraception, it had to do with family relationships, and it had to do with child rearing and education. Now we're looking at it in terms of abortion and we're saying, yes, it applies but. And the but is what's really important because the people who were arguing for extending this privacy said, you know, that means it's an absolute right, it's a right of personal privacy, there can't be any restrictions, has to be totally available as has been the case in Vermont. And the Vermont, then the US Supreme Court said, we do not agree with that position. And here's the language which is really interesting in terms of acknowledging that there's a competing interest. The pregnant woman cannot be isolated in her privacy. She carries an embryo and later a fetus. The situation therefore is inherently different from marital intimacy or bedroom possession of obscene material or marriage or procreation or education. The woman's privacy is no longer soul. And the right of privacy she possesses has to be measured accordingly. So it's an inherent recognition that there really are two interests here. And what the court did is balance those and say, you know, the woman's right to privacy is more compelling than these other interests in the early parts of the pregnancy. But as the pregnancy goes along further, those other rights become compelling enough that a state is permitted to intervene. And even in the last trimester after viability, the state is permitted to say you can't have an abortion unless there's a health or life issue for the mother. That balance doesn't exist in the law that we passed. We adopted what is permitted by the Supreme Court but was not the Supreme Court's decision that it has to be. What's permitted is an anytime, anyplace, no restriction approach. But the Supreme Court, when you say we're protecting Roe v. Wade, no, we far exceeded what Roe v. Wade said because Roe v. Wade said there is another interest here. And part of the reason that's of interest to me in particular is I proposed an amendment when we were debating this bill. And my amendment basically said, kind of like a truth in advertising issue, we should be acknowledging that there are two interests, but that we are saying that the woman's interest in determining what's happening in her body is superior to this other interest which Roe v. Wade recognized. So I'm going to read you the language because one of the things I did in it, I was very careful to not assert that there is personhood in a developing child or even that this is a life, I said, developing. And I think most people would not disagree that there is a developing life. And I said there's this interest, there's the interest of the woman, and we are choosing, we're passing this law to say this is the superior, the woman's right is superior, which is what we were doing. And I think what's of concern to me is the kind of refusal to acknowledge that there is any other interest. And Roe v. Wade made it very clear there is another interest. The moment there's a pregnancy there is another interest. The question is which is more compelling. It's not whether there is one. When you start saying it's about women's health care, it's about reproductive rights, you are saying there is no other interest. So here's the language that I appraise. And it was purely intent language. It was saying this is what we're choosing. It didn't actually affect the fact that the choice was the right anytime, anywhere, no restrictions. So the language said the General Assembly recognizes that the fertilization of a human egg begins the development of a genetically distinct human life. Begins it. It's not necessarily there yet. Begins it. However, it prioritizes, which is what the bill did, an individual's choice to decide whether to sustain a life in utero prior to and until the time of birth. Therefore, we are allowing no restrictions. And I think the second half of what I was proposing is also really important because the shoe goes on the other foot. Those of us who really believe that there is a higher interest in that developing human life, often, or I would say virtually always, just like quote the other side, ignores the fact that there is a difference in that balance of interest when it is about a life that's developing inside the body of the mother. This is not like comparing to the life of a child or adult who's walking down the street. This does impact the woman's own body because it's attached and growing in the womb. So I was really identifying and recognizing, you know what, there is an interest in the development of a genetically distinct life. There is also an interest because this is developing in the womb and it's a choice about do I allow it to continue to develop because it's in my body. Right now it's attached and part of my body. And therefore, we are prioritizing this. This language, this recognition of intent was completely voted down. Is there any discussion, Anne? Well, there was discussion. I presented the reasons and then people opposed it. And I think the opposition goes to that kind of absolutism that we discuss this issue in. Folks on the one side were not willing to say there's a developing life because then that acknowledges that there is some level of a valid interest in that. And even though the law was going to say, but the other interest supersedes it and is absolute, there was a desire to not allow that to be acknowledged. So I think that's the big picture philosophical. Well, let me ask you why were you so adamant about making this point? What energy does it carry? For me, it's about being honest in our choices. We are making a choice. We have made a choice as a state to say the right of the woman because this is happening in her body, the right of the woman has priority. We're making that choice. But so let's be honest and say this is where we are putting the priority. That's all it was saying. To me that was important and it was important to acknowledge we're putting that priority over another priority, another issue which the Supreme Court itself recognized and that is the fact that there is in fact a developing life. So that's why it was important to me. And because the bill passed with such absolutist language, it actually raises some real technical issues of concern. For example, whether you can, for profit abortion facility decided to open its doors. The language suggests that our standard health care administration laws on assessing whether this is going to impact the finances of our health care system, whether it's going to be, oh, this is private insurance only that this private agency is doing. So it's going to be harmful to Planned Parenthood, which accepts Medicaid, but balances its revenue because it also has private payers. So the fact that we look at those issues as a state if a new health provider comes in, you know, couldn't be done. What about basic, you know, our sanitation codes? It couldn't be done. Well, the language suggests it because it says that no public entity, for instance, our Green Mountain Care Board or our health department, can interfere with this access. So a person could say, hey, if you're saying that this provider that wants to come into the state can't open its doors because it's not needed. It's going to make income disparities. It's going to do all these things. It's going to hurt Planned Parenthood. That's interfering with my access. And this law says, no, you can't do that. You know what? That's actually, I got to be really upfront. That's actually not a big issue in this bill. And it's not a big issue for the same reason that the bill was kind of just a political move from the start because a lot can always be changed. And I actually am pretty confident if the kind of situation I'm talking about developed and it was going to be unfair actually to access or in fact there were health code issues and people tried to argue can't enforce them because of this language. You know what? We would pass a bill saying that's not what we meant and we're going to clarify things. But by the same token, any future legislature can say, you know what? We're going to change this. We're going to throw this bill out. And we're going to ban abortions to the full extent that Roe v. Wade permits. That can always happen in the future. So it makes me not really concerned about the concerns I identified but also points out the fact that this doesn't do anything to protect the existing rights in Vermont. It really was all about a political statement. Right. And what about the language that was tossed out that no fertilized egg, embryo, or fetus shall have individual rights in Vermont? That language was tossed out. And then as some other guests have told me that the decision of the legislature didn't really make any difference. That's right. That's part of everything I'm saying. Well, that was intent language anyway. But as a whole, this bill doesn't really make any difference. It doesn't add any protections that didn't exist. It doesn't change the law as it existed. It possibly changes the law in ways that don't protect women, that don't protect Planned Parenthood, but that can be changed. To the extent it provides theoretical protections because they weren't in statute before, that can be changed. So it really is not, it doesn't carry the weight. It just simply enables people to say, I'm the hero. I protected your rights because there's all this worry about the national issues, which actually would not impact Vermont. Right. And yeah. So the big but, and you know, so we don't lose our time. I mean, the big but, the big concern is it was sort of a piece of the momentum of this effort for a constitutional amendment. And that's a whole different ball of wax because that's harder to change our constitution. But if that change goes through, it's extremely difficult to, to remove it. So it has major weight and it's actually very different language from what Act 47 gives and raises a whole set of issues and concerns. And before you go into all of that, but we needed, then Vermont needed this, this law in order to, to bring the constitutional amendment forward. Is that, is that correct? No. No. Oh no. No, it didn't make this in anyway. The amendment could have come out of, out of discussion and then been introduced without this law. Oh, absolutely. Absolutely. The amendment could have been proposed just on its own merits. Amendments are, that's how amendments are normally proposed. So they are really unrelated apart from possibly the political momentum that we need to protect this right. We're going to protect it right now with this statute, which actually does nothing in effect. And then we're going to pursue this constitutional amendment that's going to further protect it. And, you know, we're just continuing this, this protection of women's rights in Vermont. So, so I think it was important politically to pass it. It's not at all necessary from a process point of view for, for proposing a constitutional amendment. So, well, that's all very, very interesting. And now let's go into, or please go into the different process and, and how they are different. Sure. First of all, I'm just, I referenced the process. So it has to be passed by the legislature twice, two different legislatures. In other words, people are elected, people leave. So it's sort of, you know, you've got to really show that the state wants to do this. The legislature wants to do this by going through two sessions. Since this year was the beginning of a two-year session, that means it's, it's not a matter of being able to do it next year. It has to be done the year after when we're in a new session. Once that happens, which, you know, it automatically will happen unless there was this massive turnover in legislative makeup, which is extremely unlikely. So we're assuming that, that does happen. Then it goes to a public referendum in order to change the constitution. So that's when you'll start seeing a lot of attention and discussion focused on this proposal. Because that's a big deal, a change of constitution. And what's particularly troubling to me, it goes back in part to the issue of what does Roe v. Wade say and what does this allow for or not allow for. But it goes to some of the specific language, which as I said, is very different from the language of the bill that passed. It's much, much broader. And the minute you put broad language into the constitution, you open that up for the courts to decide what does this mean. And they're really kind of on their own in terms of that decision. So it's very short. There's only two sentences. And keep in mind that the beginning parts that talk about the purpose really are not relevant. The key becomes what is the actual constitutional language. The actual constitutional language is two sentences. The first sentence is that the people are guaranteed the liberty and dignity to determine their own life's course. That's number one. Number two, the right to personal reproductive autonomy is central to the liberty protected by the constitution and shall not be denied or infringed unless justified by a compelling state interest achieved by the least restrictive means. So we've got two separate sentences. And although a court will look to the fact that, you know, that they go together, they also stand on their own merits. So we look at that first sentence, guaranteed the liberty and dignity to determine their own life's course. That's an incredibly wide open and broad statement, which doesn't include a balancing test of a state interest. So, you know, we can start thinking about all kinds of potential implications because this language can't be amended. If it's adopted, this is the way it's adopted. So we had a big debate a few years ago about the issue of assisted suicide, for example. And big debate ultimately passed, but ultimately passed with people saying, you know, this is a pretty limited thing. It's only if you have only six months to live, you know, it's only under these circumstances. It's only if there's a written, you know, there was this whole process. Well, this would eliminate the need for six months to live. This would be any time at any point you have the liberty to determine your own life's course. And that sounds really good. Well, of course, we all want to determine our own life's course. But the reality of living in a society is that we can't always totally unfettered determine our own life's course. There are other social interests involved. For instance, if I want a baby and I have a big bill from my college, so why can't the state forgive my debt and let me have a free ride so I can produce my family and get a house and a car and everything like that? And maybe a little box for the baby to live in for the first six months and free supplies for the baby and clothing. I don't think it, it doesn't require that the state funded this. But it says the state can't interfere with you choosing whatever your life's course is. I'm just going off on it. I can give you another example, which is a very different example. I'm very involved in mental health activism, activity, protecting rights, including the liberty interests of people who have a mental illness. And there are a number of people within that, you know, activist community who would argue that individuals have a liberty interest in deciding whether they have certain kinds of medication or not, whether they accept treatment or not. Our current laws say, you know, yes, if you have capacity to make your own decision, you have those rights, but you may not have the capacity to make that decision. And when you don't, we get to decide for you. And we can force you to have these medications that you don't want that are changing the way you think. And this would say, gee, people are guaranteed the liberty to decide their own life's course. So there are people in my community in terms of mental health who would welcome this for a reason totally unrelated to the intention to be dealing with access to reproductive rights and abortion rights specifically. And I think that's one of those areas where I get really concerned about the, you know, dishonesty, if you will, when we start calling these reproductive rights or women's health care rights or equality in health care rights, because that is ignoring the fact that any other interest actually exists. And it's saying that it's health care exclusively an issue of health care of a mother to access an abortion. There's no other interest. So even when we talk about reproductive autonomy, I support the constitutional right to choose things like contraception, for instance. But if one understands and believes that reproduction has already occurred, which is the core of the debate, and we're eliminating that debate, we're saying, no, no, no, no. Reproductive autonomy includes what happens after this life has been reproduced but is not yet born. That's part of reproductive autonomy. So that eliminates that balancing. And it's interesting that I think some people say, well, there is a balancing test. It's just like what Roe v. Wade says, because there's that language saying, unless it's justified by a compelling state interest. And that's what Roe v. Wade said is, at viability it becomes, it can be, a state can choose to identify it as a compelling interest. But if you put it in the context of existing constitutional language, you know, the Constitution itself says that rights belong to, and I'll quote, find the quote, all people are born equally free and independent. All people are born. So that kind of institutes this as not applying to an interest of somebody who's not yet born. It does apply to all individuals, the people, so it applies reproductive autonomy, whatever that means, because that's a brand new term, without saying that there are issues of whether somebody has capacity or not, without saying there are issues about age. So people are thinking abortion, right of minors to have abortion, people want that protection. Okay, so a 12-year-old can go in and say, you know, I don't ever want children, so I want to be sterilized. Or a person who has a severe mental disability and can't make their own choices says, I, you know, I don't want this, I do want this. One can argue that that becomes something that would be a compelling state interest, but it's leaving that to the courts. It's not allowing, it will not allow the legislature to say, no, we don't agree, we wouldn't go there. It's actually the same in the statute, but as I said, the statute can always be changed when people realize, oops, we didn't mean that, because the statute as it's written overturns our existing law that allows for the potential for somebody to be sterilized if they are severely disabled and being exploited by men because of their disability and becoming pregnant, and then their child automatically is taken from them because they're so severely disabled. You know, there are ways with court protections that a person in that case could result in sterilization. This new language says, nope, can't touch that, can't intervene with a 12-year-old who wants a sterilization. As I say, I think we would change that if that started happening, but you can't change a constitutional amendment very easily. You've got to go back through that entire multi-year process in the legislature and citizen referendum, and people have to understand what they're voting on. I think that's a big risk with the proposal is that if people hear it and think all we're doing is protecting Roe v. Wade as it is now in the state of Vermont, that's not at all what this does, and if people don't educate themselves and understand, they may be voting on something they would not actually support or want. And are you saying that now that this language is here in the proposed amendment, it cannot be changed? That's right. It would have to start the process all over again if somebody was proposing different language for a constitutional amendment. And the exact wording as it is cannot be amended or changed. That's part of the process of creating a constitutional amendment in contrast to just a statute. So what we're going to have to stop in a few minutes now. So what is your outlook now? What is the next step for you as a legislator? I think it's really about education. I think my constituents, I think the people of the state of Vermont have a right to really know and understand what this is. And I believe in the right of people in terms of self-determination and the laws they live under and the Constitution. And if there's a full understanding of everything this constitutional language does and might do because of the openness of the language, and people want to choose that, that's their right. I'm not going to be blocking the polls that day. But my concern is that people won't and don't understand what it actually says and does. That it goes vastly beyond Roe v. Wade. That it ignores any state interest in a viable unborn child. And that it opens the door to all of these other things that we don't even know because we've put in some language here that's not defined, that has never been used before. So that's my big interest is that people really be educated and understand by the time it comes to vote exactly what it is they're voting for. And whether they're sure they really want to change our Constitution and lock that in in a way that would be very difficult to change again. Thank you, Representative Anne Danyahu, and you've really educated us today. So pretty soon we'll be on to part five of this series within the series. And I hope that you will come back and explain to us more about what's going on. Be happy to do that. Thank you so much. It was very enlightening today. Thank you viewers and thanks Channel 17 for always this chance to reach the people. Goodbye for now.