 This is part two of the House Human Services Committee on Wednesday, January 19th. We've just taken a short break and we are continuing our testimony on Proposition Five, Right to Personal Reproductive Liberty. And we have two people this morning to wrap up this morning and we're gonna start with Indy Schoenscher from, she's the Advocacy Fellow at, they are the Advocacy Fellow at the ACLU. And I apologize for beginning to use the wrong pronoun. Welcome. Thank you. Thank you for the opportunity to testify on Proposal Five. We fully support the proposal and urge you to pass it so that the voters can make their voices heard on this critical issue. Considering the U.S. Supreme Court's recent refusal to block Texas's ban on abortion and shining reproductive liberty in our constitution is urgently important. These are unprecedented times as we are witnessing at both the state and federal levels, the whittling away of reproductive liberties we have held on for decades. In the event that the Supreme Court decides to overturn Roe, we have the responsibility and an opportunity to not only sustain the rights afforded in Roe, but to go a step further in establishing personal reproductive liberty for every Vermonter. The right to decide if, when and how to have children is critical to an individual's autonomy, equality and ability to participate in the social, economic and political life of the state and the nation. I apologize for the noise around me. I have a little kit and running around. Reproductive liberty is essential to fulfill the promise of equality and self-determination rooted in our nation and our state's founding documents and principles. Reproductive autonomy means opportunity, the opportunity to obtain an education, to work, to love, to build a family, to make a good life and ultimately the opportunity to live that life as one desires. The United States Supreme Court has recognized the centrality of this right in numerous decisions. In Griswold v. Connecticut in 1965 and Eisenstadt v. Baird in 1972, the court struck down bans on contraception for married and single people respectively. In Eisenstadt, the court recognized the importance of the right of an individual married or single to be free from unwarranted governmental intrusion so fundamentally affecting the person as the decision whether to bear or begat a child. In Roe v. Wade, decided in 1973, built upon these cases, recognizing abortion as a fundamental right alongside decisions relating to marriage, contraception, education, and family relationships. Even in Planned Parenthood v. Casey, decision that we can grow, the Supreme Court continued to recognize reproductive autonomy as a fundamental right saying that the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. The right to reproductive liberty and particularly the right to abortion remains for the time being a fundamental right at the national level and should be recognized as such here in Vermont as well. But this right is under attack at the federal level as well as in other states which have passed over 400 restrictions on abortion since 2010. Justice Kavanaugh's dissent in the Louisiana abortion clinic case which could have closely near, excuse me, which could have closed nearly all of the clinics in the state and essentially dismantled Roe highlights the very real danger. And more recently, the Supreme Court's refusal to consider the constitutionality of SB8, Texas's new abortion restriction law has allowed for that law to continue and actively impact people looking to exercise their right to reproductive liberty. Justice Sotomayor opined that the Texas law raises a challenge to federal supremacy and the court's delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to abortion in Texas. We must respond to the mounting threat to reproductive liberty by enshrining reproductive autonomy as a constitutional and fundamental right in our state constitution. This proposal is a simple affirmation of our values, values that Vermonters have cherished for generations. In Beachum v. Leahy, the Vermont Supreme Court decision overturning a statute forbidding medical providers from providing abortions, the court recognized that the legislature had affirmed the right of a woman to abort. Vermonters continue to value independence and the right to reproductive liberty free from government interference yet there has been no other Vermont Supreme Court decision on this issue since that case. The lack of Vermont Supreme Court jurisprudence and legal cloud around these rights at the federal level demonstrate the need for this amendment. There should be no question where Vermont stands with regard to its core values and commitment to fundamental rights for those values and those rights to be protected definitively, they must be enshrined in our state constitution. And there are just a couple of things I would like to address just from listening to previous meetings discussing this proposal. First, the reproductive liberty amendment is a restraint on government action that infringes on reproductive liberty. It will not compel private healthcare providers to provide care that violates their moral or religious beliefs. Also, there are federal statutes that protect healthcare professional conscious rights and prohibit recipients of certain federal funds from discriminating against healthcare providers and choose not to participate in the delivery of abortion-related healthcare services. And these will still be enforceable and will not be impacted by the passage of this amendment. For all of these reasons, the ACLU supports proposal five. No one knows exactly how far the federal government and courts will go in dismantling reproductive rights, but Vermont should give voters the opportunity to stand up to a tax and affirm their commitment to reproductive liberty by enshrining the fundamental right to reproductive autonomy in our constitution. This right deserves the highest level of legal protection and we urge you to pass this proposal. Thank you. Thank you, Indy showing her. I wanna ask if there are questions of the Advocacy Fellow from the ACLU. Representative Rosenquist. Well, thank you, Madam Chair. One of you just seems interesting to me that the bill is being essentially proposed to women in Vermont as necessary to protect rights under Roe versus Wade in case that decision is overturned by the Supreme Court. But proposal five never mentions women abortion or Roe versus Wade. And why is that? It seems to me it's being specifically vague so people really don't know what it's about. Representative Rosenquist, is there a question in there? Yes, I guess the question is why does the Prop five not mention abortion, Roe versus Wade, et cetera? Is it something, go ahead. Is that something you can answer? I believe I can. So proposal five is meant to go beyond Roe versus Wade and the right to abortion. It is encompassing reproductive autonomy. So that's inclusive of abortion but it is not limited to just that. And so the language of the proposal reflects that. Thank you. Representative Rosenquist? Yes. Just seems to me that when we grant more freedoms to one group of people, inevitably we take other freedoms away from another group and that apparently is what happens here in Prop five. We give women greater autonomy for reproductive autonomy and we essentially eliminate the value of the unborn. Especially those that are at viability and beyond. It just seems ridiculous to me and we just have to say that. And I don't know if you wanna respond to that or not. Representative Rosenquist, again, I appreciate and I think it's important that you state what your opinion, what your view on this is. I'm not quite clear what the question is. And if it was, if you don't have a question we'll go to Representative McFawn. You've muted yourself so I'm not sure whether you had a question, whether there was a question in your statement. I'll come back after Topper. Okay. Representative McFawn. Thank you, Madam Chair. Thank you for that presentation. One thing that I would like to emphasize is we're not just talking about women here. We're talking about men as well. And I wanna make that clear. Sterilization, things like that. We're talking about the entire reproductive issue. Thank you. Thank you. Representative Rosenquist, before we get back to you we have a question from Representative Wood. Thank you, Madam Chair. Ms. Schoenher, can you, I was following along your written testimony that we have on our webpage, thank you very much. And at the end you added some clarifying points based upon other testimony that you had heard or comments that you had heard. Could you just briefly repeat those just because I wanna make sure I understood them? That would be appreciated, thank you. Yes, of course. So the comments that I wanted to clarify on is that the reproductive liberty amendment is a restraint on government action that infringes on reproductive liberty. So it would not compel private healthcare providers to provide care that violates their moral or religious beliefs. And then the second point to that is there are federal statutes that protect healthcare professionals, conscious rights and prohibit recipients of certain federal funds from discriminating against healthcare providers who choose not to participate in the delivery of abortion related healthcare services. And with this passage, those statutes would still be enforceable and would not be impacted by this amendment. Thank you for that clarification. Back to you, Representative Rosenquist. Thank you, Madam Chair. Proposal five doesn't specifically protect a woman's woman's right to an abortion. It protects everybody's right to personal reproductive autonomy. Can you explain to me what a biological man's right to personal reproductive autonomy looks like and how the ACLU would defend that right? And what happens if 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 on what legal constitutional basis under proposal five? Thank you. I'm not sure if I'm following that question. I think Representative McFawn provided a good example of where a man would potentially be wanting to exercise reproductive autonomy. As for the rest of that, the question, each case is unique and the facts are decided. The case is, each case is unique as I was 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 these reproductive liberties would be in conflict. I can't come up with that. It would seem like they'd be in conflict if the man wanted to, the child to be born and not be aborted. And the woman said, no, we're gonna abort the child. It seemed like a conflict. And how would the ASLU sort that out? We believe that it is the woman's right to do what they want with their body. I think that's the stance we would take on the reproductive autonomy of the justizational parent would come first. Who says they come first? Because the man wants to carry on, let's say his name, his heritage, that sort of thing and with the birth of a child. And we're saying the woman's right to autonomy, reproductive autonomy out, I should say it, essentially. Eliminates his. Indie Shown, I am not a lawyer, but I play one on TV. No, in this room, but my understanding is when rights are in conflict, we go to court. And that is the role of the courts to decide or a judge or however that is. And so what Representative Rosenquist, and so I guess what I'm asking is, 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 court's decisions. Would I be correct in that response? Yes, that is the correct response. Yes, thank you, Madam Chair. Opposition five doesn't mention women at all in it. So I'm still trying to understand why they would trump the situation, but thank you. Representative McFawn, I see your hands still. Thank you, can you hear me? I can. My whole screen, I can't turn my picture off. I can't mute myself. I can't use anything down below about who's participating to chat or anything. So what I'm gonna do, I'm sorry about this, but I'm gonna leave and come back in and see if that'll fix it. Okay. I don't have any other questions. Okay, thank you. Thank you for the presentation. Do you have any final comments that, let me before you do that, let me check in with people around the table if you have any questions. And do you have any final comment that you would like to make? No. Thank you. Thank you, thank you very much for the presentation. And now, Committee, we are going to hear from Eleanor Spotswood, who is the Solicitor General, Vermont Solicitor General. Thank you, Madam Chair. I have to correct the record, the current Solicitor General is in fact, still in office until next week. So, Listener General in waiting, if you will. Thank you, Madam Chair. Thank you for this opportunity to speak to you about Proposal 5 on behalf of the Attorney General's Office. The Attorney General's Office joins the ACLU in urging the committee to put Proposal 5 before the voters. And I think my colleagues' comments from the ACLU were absolutely correct, so I would co-sign those. I know this is the second time that most of you have seen Proposal 5. I know that you have heard from me several times on the issue, so I will spare you my full overview of the proposal, but just a few comments based on what we've just heard. The committee and my colleague from the ACLU is absolutely correct that Proposal 5 encompasses more than just abortion. It protects both women and men. The language of Proposal 5 is actually based on a long line of case law protecting the rights to choose or refuse contraception, to choose or refuse sterilization, the right to become pregnant, and the right to choose abortion. The Madam Chair, you are absolutely also correct that difficult cases where fundamental rights of different parties are pitted against each other are decided by the courts. That is the court's role. At the same time, because Proposal 5 is designed to codify this line of cases that includes Roe versus Wade, and testimony in the legislature has been very clear about that. So, in my mind, that Proposal 5 would, as my colleague said, protect the right to abortion over any other claims to force someone to carry a child to term. And again, that's based on the language of the proposal, where it comes from. If there was any doubt in the court's mind, I think they would have to go back to where that language came from, and they would look at the cases that it was based on, which include Roe versus Wade. So, those are my brief comments based on what we've heard. I'm happy to point to detail about that or any other questions that the committee has about any aspect of Proposal 5. Before we have questions, without asking you to repeat what you did two years ago, we do have some new members, and so to review some of that, I think would be helpful. Certainly. So, Proposal 5 recognized, an important fundamental right to reproductive autonomy. It encompasses this whole basket of rights that I've been talking about, which comes from Supreme Court case law over the last century, really, starting with some cases recognizing the right to contraception among married people and then among single people all the way to Roe versus Wade, and the cases covering abortion after that. Proposal 5, as my colleague said, prevents action taken by state governments. The state constitution is fundamentally a constraint on state government and what the state government can or can't deal with respect to individuals and individual rights. So, Proposal 5 prevents future state governments from restricting reproductive rights. This includes laws passed by future legislatures, and it also includes, you know, information or policies adopted by the executive branch. So, for example, Proposal 5 would prevent future state governments from requiring hospital admitting privileges for abortion clinic doctors. We've seen this done in other states, requiring multiple doctors to approve each abortion. These are things that restrict rights to abortion without any medical purpose, requiring abortions to take place in a hospital rather than a clinic if it can be safely performed in a clinic, that kind of thing. I will also note that certainly since we last spoke, abortion rights are even more precarious than they were at the federal level. The U.S. Supreme Court has a case before it right now asking it to overturn Roe v. Wade. It held total arguments in that case in December. We expect a decision within the next six months. And notably, the state of Mississippi is now arguing to straight up overturn Roe v. Wade, which is a change from its strategy since Justice Barrett was appointed to the U.S. Supreme Court. It did not originally come to the court asking to overturn Roe v. Wade, but once Justice Barrett was appointed, it saw its opportunity and that is now the issue squarely on the table for the U.S. Supreme Court. So this is happening, it could very well happen. Many court watchers in fact think it will happen before the voters get the chance to weigh in on proposal. Let's see, other notable points in proposal five. It adopts something called scrutiny. That's this language at the end of the proposal, which is justified by a compelling state interest achieved by the least restrictive means. This is a legal term of art, which you may be familiar with, also known as strict scrutiny. It is the highest and most intense form of scrutiny that the U.S. Supreme Court uses to review government action. It is not, in fact, it does not mean that no state action will be upheld. The court uses strict scrutiny to review when a state is infringing on fundamental rights or suspect classes. So if a state tries to take some action based on categorizing people based on race, for instance, the court will use strict scrutiny to review that. And strict scrutiny is the standard that the U.S. Supreme Court used in Roe v. Wade. So this is part of what I mean when I say that proposal five is codifying Roe v. Wade. The court, after Roe v. Wade drifted away from the standard a little bit, but there was a period of time where strict scrutiny was the standard they used to review abortion restrictions. And so again, we have case law on that that we can point to if there are questions about what would the court do under the standard. As I mentioned, strict scrutiny is not absolute. The government can still infringe on fundamental rights if it justifies its actions properly. It's a high bar, but it's not impassable. So the burden is on the government to show why its action should be upheld before the court if there's a question of whether a law is permissible under strict scrutiny. And actually, I came across a study that showed that approximately one in three laws challenged under strict scrutiny are actually upheld. So it's maybe not as strict as it sounds. It is applied in a wide range of contexts to a wide range of rights. And courts have upheld laws under strict scrutiny in many different areas. There is, for example, regulations that were challenged under the First Amendment that prohibit sexually explicit speech, but were upheld under a strict scrutiny standard based on a compelling government interest in protecting the physical and psychological well-being of minors. And so that's an example of a law that was upheld under strict scrutiny. And there are several other examples, which I'm happy to go into. Another example actually is Roe versus Wade itself. So the court applied strict scrutiny and ended up adopting a trimester framework. It found that the government had an increasing interest in regulating abortion the further along a pregnancy is. And then I know the committee just heard this, but the final point I'll make is to echo my colleague's point that proposal five does not regulate private actors. It regulates the government and what the government can or can't do. It does not require private health care practitioners to provide any particular service, including abortion. It does not restrict the state from regulating health care providers, including as to abortion if the state can show that compelling interest. And it does not require private individuals to undergo any medical procedures. In fact, it protects their right to choose which medical procedures to undergo. Madam chair, is that, is that sufficient? Yes, thank you very much. I appreciate the review. That's helpful because actually three of the members of this committee were not here two years ago. And so this is new to them. And this is important enough that I think it, that we all need to have the same information. So thank you. And you, we have a question representative Rosenquist. Thank you, Madam chair. Yes. Relative to you had talked about, there is some movement to repeal row versus way. Before the possible ratification of this amendment. Did I understand that correctly? And what would happen then if that did happen? I wasn't quite clear on that. So, row versus way is currently being reconsidered by the supreme court. And it's being reconsidered in a case that is brought by Mississippi. Mississippi has currently enacted a 15 week abortion ban. In that case. And the 15 week abortion ban in Mississippi was overturned. Or. In joined by the fifth circuit saying, you know, this is illegal under row versus Wade. And now the US Supreme court is considering whether to strike down row versus Wade. So the immediate impact of that case would be that the 15 week abortion ban goes into effect in Mississippi. Because cases only decide the issue before them. So the issue before the court is the 15 week abortion ban. However. It would simultaneously. Essentially repeal the protections of row versus Wade. It would say, you know, or it could. It is likely to say that row versus Wade is no longer good law. In which case the issue of abortion protections would be punted back to the individual states. And so I believe there are a number of states. I don't actually know how many. I would say as soon as row versus Wade is overturned. We will restrict abortion in all these ways. Vermont doesn't have one of those laws. But Vermont also doesn't have. A codification of the protections of row versus Wade. Did pass a law. Or some of you did pass a law. In the last session that, that did put in place some protections. And that was a statute. And as you all know, statutes can be repealed and replaced. And what proposal five would do is. Codify row versus Wade so that. Those kinds of laws could not be passed. Vermont. Does that answer your question represented McFarney. I just have a follow up, but if I could. Oh, Rosenquist. Yes. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I just stepped out of my mind. So I guess we'll go to the doctor first. Okay. If it looks like my hands up. It's thought up. I tried to get off. I couldn't get off. So I'm all I can do is talk. And listen. I can't use anything else. Thank you for your presentation. Okay. I can't, I can't get my face off. I want to read something. I remember what my question was, and it was. Right now there's probably four or five. What you would call, you know, anti abortion type. Bill circulating it on the wall in our committee. And I presumed that this. Proposition five. Would make all, I mean, if by some miracle, some of those past would proposition five, make them null and void. So. Essentially, yes, the, the hesitation you're hearing in my voice is that. It would require the courts to weigh in and tell you that they're null and void. So it would require some, some case to come before the court before there was a definitive ruling about it. And that's what I'm saying. I'm saying that for all intents and purposes. That is, that is what we're talking about here. Thank you. I say that also, you know, I, the lawyer in me needs to add this caveat, which is, I haven't seen those bills. I'm taking you at your word that they are. Anti abortion. And that, that is something that. Proposal five is designed to stop you from doing. One in particular with grant. Pl Ga is an alternative. To a fetus. At 24 weeks or greater. Justation. So that's a little different than some of these that doesn't specifically say anything about abortion, but if the person is a person, I assume they. They, they could not be terminated. a woman's right to reproductive autonomy or a pregnant person's right to reproductive autonomy. That portion of the bill would not be upheld under proposal five. Thank you. Madam Chair. Yes. I do have a question now. The term proposal and the term proposition keep going back and forth. I would like to ask either one of these lawyers. Is there a difference in that? Not as far as I'm aware. I have been saying proposal because that's the language that I see in this document as passed by the Senate, the proposed a moment to the Constitution. But I have heard it both ways and I am not aware of any difference, legally speaking. Thank you. Are there other questions? Can I ask one more question? You asked, that's why we're here. I did ask the other presenter this question, but I'm just curious what your answer would be. And that is, why is it that Proposition Five does not mention women or abortion or Roe versus Wade? And yet it certainly is the core of all these things. And it seems quite frankly, I'm again, this is my opinion, but it just seems deceptive that maybe you have some answer to that. My answer is very similar to the one that you've already heard. It protects more than just abortion and it protects more than just women. It protects everyone with a right to personal reproductive autonomy. And the language comes from a long line of cases that include Roe versus Wade and protect abortion, but also protect the other rights that we've heard of today, which include contraception, to use or refuse contraception, the right to use or refuse sterilization, the right to become pregnant and the right to end a pregnancy. Thank you. Excuse me. And perhaps I have a follow-up question and some of the court cases that you allude to is the term reproductive liberty used or reproduced? Yeah, let me find my notes on that one moment, please. And that I'm just taking a moment is because this language generally has been used in a number of cases. I'm sorry, could you repeat that? The language generally of Proposition Five has been used in a number of cases. So liberty and autonomy has been used by the Supreme Court. Autonomy and dignity, I believe, has been used by the Supreme Court. And I'm looking for, and this is in the reproductive rights cases, and I'm looking for a specific personal reproductive autonomy. So in Planned Parenthood versus Casey, which was the 1992 case that was a follow-up to Roe, they said, these matters involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy are central to the liberty protected by the 14th Amendment of the US Constitution. That is the footnote that your legislative counsel included in the draft. So she was looking specifically at Planned Parenthood versus Casey for that language. And then there's further language about how the decision whether to bear a child is central to a woman's dignity and autonomy, her personhood, destiny, and her conception of her place in society. So I mean, so the importance of that is that lawyers, and I mean, this is language that is not new, it's not foreign, it in fact is very, it is clear to those who work in that field in terms of if you have questions or you want that kind of thing. Correct, this language about liberty, dignity, autonomy, reproductive autonomy, this all comes from a case law that is row and before and after row. And so it's certainly, those are keywords for lawyers, but even more so this document that I have up on my screen is also in your legislative record as exactly what the drafter of this amendment was looking at when she put together this language for you. So if there is any doubt from a judge, they can go back through your legislative record and look to where this language came from and pull up those cases. So she cited Casey, she cited Roe versus Wade, she cited Eisenstadt v. Baird, actually Lawrence v. Texas is in this line of cases. That was a case protecting rights to same sex partnerships. And so, which is based on the same US constitutional provisions that gave rise to Roe versus Wade. And so all of these cases are in there and in your legislative record and contributing to the language of this amendment. Thank you very much. Committee, do you have any final questions? I don't see any. Ms. Pusswood and Indy showing her, I wanna thank both of you for your testimony, your legal testimony and your testimony today in terms of outlining where some of the length both support for but also more importantly some of the legal roots of this and answering some of our questions which we will continue to have. This will end our testimony today on proposal five and we will pick up testimony on proposal five tomorrow and tomorrow after lunch. Our original agenda said we will be starting at 1.15. I would like to start us at one so that we have sufficient time before we go on the floor because Dr. Nasko was not able to come today. He's a doctor. And he had patients to see. And so in deference to his schedule, wanting to and to get all those in. So we will have a key as well as someone from Vermont right to life as well as someone from it used to be Vermonters for Ethical Healthcare. The group now is called Vermonters for Good Government, Norm Smith, but that will be and as well and then someone from the Vermont Medical Society and I don't, and that will wrap up our testimony before the public hearing which is next Wednesday. And then after the public hearing on Thursday, we'll talk about, in between as a committee, we'll talk about this, but after the public hearing on Thursday, we'll talk about what we've heard and what our committee's ultimate decision is. And so with that, we end this morning's testimony and this morning's committee meeting and the committee will reconvene on two other bills or two other things before us at 1.15. So thank you both. And if we can go on break.