 As far as I can, we generally appreciate because we have a public hearing that we're also going to be attending tomorrow, even though we don't have the bill. As far as I think it would be helpful for us to get a walkthrough of the bill, as the bill is introduced. And again, we have to keep in mind that human services may, will most likely, be changed. I'm not sure. And they have their areas of authorization, but at the very least, we will know what it's, what has been introduced. And that way when people testify tomorrow, hopefully, we'll have a clear idea of what you're talking about. Thank you. Before we start though, I can just go around and see some new pieces. Right? Okay. Thank you. My name is Maddie. And Maggie, who are you? I work with remote rights. Okay, great. Thank you. Miranda Gray with the Reach Up Program, a part of the BLI program. Okay. Sarah Morris with Bass and Arbor, also part of the BLI. So we're on a leadership institute. Great. I think people, anybody else, are selling? Yeah, great. Oh, and my name is Sarah. I work with the Regional Commission, but I'm really here for BLI, so I'm sorry. Great. And I'm also with BLI. My name is Anna Smith and I work for the Addison County Grant Child Center. Great. I'm sorry, why? Is that you? Yes. I'm Russian, but I'm Spanish. Great. Okay, great. Welcome, everybody. Thank you. So, to the community. How are you, Bryn? I'm good. This will not be the first time. I mean, this will not be the only time we'll have a lowly view of Capitol Hill. And my understanding is that it will be referred to us. We'll have to go back and we'll get an understanding of what happened upstairs. Okay. Good afternoon committees for the record, Bryn Hare from Legislative Council. So, I am here to give a walkthrough of age 57 as it was introduced. I was going to start with a little bit of background on the right to abortion in Vermont currently and some history on the U.S. Supreme Court jurisprudence on abortion. But I won't go too far down that road. So, as you know in Vermont currently, there's an unrestricted legal right to abortion regardless of a person's age or marital status. There's no requirement that a person notify or get permission from a parent or a guardian or a spouse prior to getting an abortion. And also, Vermont has no statute that creates an explicit right to an abortion. In 1942, I think it was, the General Assembly enacted a law that criminalized abortion. It provided for, I think, up to a 20-year penalty to a person who provided an abortion. But the statute specifically provided that a person who was seeking an abortion couldn't be criminalized or penalized under the statute. So, there was a Vermont Supreme Court case that was handed down in 1972 called Beecham v. Lehi. And in that case, the Supreme Court said that by providing that a person who was seeking an abortion couldn't be penalized under that statute, the General Assembly was inherently saying that people have the right to an abortion. And by inherently saying that people have that right, the legislature couldn't then prohibit the safe exercise of that right by criminalizing a provider for providing an abortion. So, it found that our criminal statute for abortion was unenforceable. So, after that decision, the statute was not enforced anymore. It remained on the books until it was repealed in 1914. So, that case did talk about abortion. It dealt with the abortion statute that was on the books at the time. But it did not develop any jurisprudence about whether there's an independent right to abortion under the Vermont Constitution. And there are no existing Vermont Supreme Court cases that analyze whether or not that right exists under a Constitution. There is, however, United States Supreme Court jurisprudence about the right to abortion, as you know. And that stems from Roe v. Wade, which was handed down in 1973. You probably all know that it struck down a Texas statute that criminalized the act of providing an abortion. And I am going to talk about Roe a little bit more in depth, but first I just want to say a couple things about the way our government is structured. I think it might help provide some context for this conversation. So, as you know, the Supreme Court are the final arbiters of the United States Constitution. So it's their responsibility to just determine what the Constitution means. So in Roe, they found that the court found that states can't categorically prohibit abortions under our Constitution because of the 14th Amendment right to privacy. And that right to privacy embraces a woman's decision or a person's decision about whether or not to carry a pregnancy to term. So it's up to the states to regulate this fundamental right, whether and how to regulate it. And that's because the states have the police power over their citizens. So in the United States, the police power comes from the 10th Amendment of the Constitution, which gives the states the rights and powers that are not delegated to the United States. So it's that inherent authority of the states to essentially regulate the well-being of its citizens. And that includes the right to adopt laws that promote the public morals for the public safety. So this has been consistently recognized by the U.S. Supreme Court since its earliest cases that every state has the power that is not surrendered to the federal government to guard and promote the public interests by reasonable police regulations that don't violate the Constitution. So it is up to the states to regulate the fundamental right to abortion. So in the event that Roe v. Wade or its progeny are somehow undermined by the U.S. Supreme Court or invalidated, the right to an abortion would return to the several states. So that would result in essentially a patchwork of different regulations across the states and whether or not you could have access to abortion would depend on the state in which you lived. And depending on the scope of such a potential future ruling, the states might be free to regulate abortion or prohibit it entirely. So now I'll talk a little bit more about Roe. So as I mentioned, it struck down that Texas statute that prohibited abortion and it found that states cannot categorically prohibit abortion because the 14th Amendment right to privacy encompasses a person's right to access abortion. Yes. So the 14th Amendment right of privacy embraces the right of a person to choose whether or not to carry their pregnancy to term. So the court talked about the scope of that privacy right as only including personal rights that can be deemed, quote, fundamental or implicit in the concept of ordered liberty. And specifically relates to activities in the realm of marriage, procreation, contraception, family relationships, and child rearing and education. So that's how the court framed the right. And to be clear, the right to privacy was not established in Roe. There was an almost 10 years worth of jurisprudence about the right to privacy prior to the Roe decision. So the actual right to privacy came from the U.S. Supreme Court case of Griswold v. Connecticut, which was handed down in 1965. And that was the first case to articulate a constitutional right to privacy. And you might remember that that was the case that found that states can't restrict a married couple's ability to access contraception. And that case was followed up a few years later by Eisenstadt v. Baird. And that found the same thing for unmarried individuals. States can't prohibit people from accessing contraception under the 14th Amendment right to privacy. What year was that? The second one, the Griswold, was 1965. So the court's decision in Roe established two major things. First, they found that states couldn't regulate abortions during the first trimester of a pregnancy. Because it represented a time of a private medical decision between a person and a patient and her doctor. The second major holding was that states could regulate abortion later on in pregnancy. So after the first trimester, a state could regulate the procedure to protect the health of the patient. And in the viability stage, the state could regulate or prohibit abortion to preserve the potential life of the fetus. As long as there was an exception for the life and health of the patient. So the decision noted that since the first trimester, abortion is no more dangerous to the life or health of the patient than childbirth itself. That states had no, there was no compelling interest for a state to regulate it during that stage. And the point at which the state's interest in potential life of the fetus became a compelling interest was only at the point of viability. So states could regulate to protect maternal life after the first trimester. And they could regulate to protect the potential life of the fetus only after viability. So in other words, according to Roe, only after the first trimester does the state's interest in protecting the maternal health of the fetus provide a sufficient basis to justify state regulation and only to protect that interest. And then following viability, the state's interest permits it to regulate and even prescribe abortion except when it's necessary for the preservation of the life of the patient. The life or the health of the patient. So there's a whole lot of Supreme Court jurisprudence about abortion. I'm not going to go into all of it, but I'm going to talk about one follow-up decision, and that's Planned Parenthood versus Casey. That was handed down in 1992. And then that's an important case because the Supreme Court articulated a new standard in determining the validity of an abortion regulation. And it did so by asking whether or not the regulation imposed an undue burden on the person attempting to get an abortion. And the court defined an undue burden as a substantial obstacle in the path of a woman seeking abortion of a non-viable fetus. So in that case, that was a Pennsylvania case. Pennsylvania had imposed several different restrictions on the right-hand abortion. The court upheld some of them and struck some of them down as being unconstitutional. So for example, Pennsylvania had imposed a 24-hour waiting period on people who wanted to get an abortion. And it also required parental consent for a minor to get an abortion with a judicial bypass procedure. And those were upheld by the court as not imposing an undue burden. However, Pennsylvania also had provided for a spousal notification requirement, so requiring a person to seek permission or approval from their spouse prior to getting an abortion. And that didn't survive the undue burden test, so the court struck that one down as unconstitutional. But the thing to take away from the Planned Parenthood case is really that it used a different standard than the compelling interest standard. So it represents the Supreme Court moving away from the strict scrutiny analysis of the fundamental right to abortions that was used by the row court and instead allowing greater regulation of abortion during the first trimester of pregnancy. So that's a little bit of background information. I was going to move on to the bill now, unless I have a question up there. Okay, great. So I'm just going to jump right into section one if everybody has the bill in front of them. So the bill starts out with a few words of legislative intent. It says that the legislature intends this act to safeguard the right to abortion in Vermont by ensuring that the right isn't denied, restricted, or enforced by a governmental entity. Section two, we've created a new chapter within Title 18. Sub-chapter one is the Freedom of Choice Act, and it provides that every individual has a fundamental right to choose or refuse contraception or sterilization. Every individual who becomes pregnant has a fundamental right to choose to carry that pregnancy to term to give birth to a child or to have an abortion. And then lastly, a fertilized egg, embryo, or fetus shall not have independent rights under Vermont law. And then if the second section within that sub-chapter is interference with reproductive choice is prohibited, and this provides that a public entity, which is defined later in the bill, shall not, in the regulation or provision of benefits, facilities, services, or information, deny or interfere with the person's fundamental right to choose or refuse contraception or sterilization, or to choose to carry a pregnancy to term or to give birth to a child or to obtain an abortion. So it just reflects back on that first section that lays out the fundamental rights of individuals in Vermont. Subsection B, this provides that no law enforcement shall prosecute a person for performing, inducing, or attempting to perform or induce their own abortion. So sub-chapter two, I'll move on. This sets out a few definitions. We start with the healthcare provider definition. This is used elsewhere in Title 18. It's intended to encompass all people, partnerships, or corporations, including healthcare facilities that are licensed, certified, or authorized by law to provide professional healthcare services in Vermont to an individual during the course of that individual's medical care treatment or confinement. It then goes on to define a public entity, which is defined as all three branches of state government, or any agency, department, officer, other subdivision of state government, or any elective division in the municipal government, or again any elective or appointed officer within municipal government. That is the definition of public entity. It's important because that is what this bill regulates, is what public entities may or may not do. So I'll move on to section 4094-97. So this section provides that a public entity shall not decry the consenting individual of the choice of terminating that individual's pregnancy, which shall not interfere with or restrict in the regulation or provision of benefits, facilities, services, or information. The choice of a consenting individual to terminate the individual's pregnancy and then three and four have to do with healthcare providers. So public entities shall not prohibit healthcare providers that are acting within the scope of their license from terminating or assisting in the termination of a pregnancy. And the public entity shall not interfere with or restrict the choice of a healthcare provider to terminate or assist in the termination of a pregnancy. So again that provides that no public entity shall interfere with the right of an individual to get an abortion, shall not interfere with the right of a healthcare provider to provide an abortion. Does not impose an affirmative obligation on healthcare providers to participate in abortions. So given the definition for public entities, can you speak to how a public official or elected official might apply to someone? Like what does that mean exactly? Does that mean right registration, standard fine of an abortion connect, where, what the intent is there? Right. So I would say that I think it imposes an obligation on a public entity to follow the law as it's written. I can speak about, you know, the constitutional right of the general assembly to draft legislation, oppose bills. I do not think that anything, I do not think that this would impose a private right of action against a legislator for drafting a bill. Is an elected official or public officer usually included in the definition? Is that standard or was that put in for something very specific? So this was not lifted from another portion of Vermont statute. We do regulate public entities in other ways, but this was new language that was created for this bill. I should say that this bill was modeled after an Oregon state statute, the past I think in 2017, that defines public entity in a similar way. So I'll move on to the last section of the bill, which is the enforcement provision. So this section establishes that a person would have a private right of action if they were injured as a result of a violation of this new statute. And that person would have a private right of action for injunctive relief. And also, in addition to any injunctive relief, the court may award costs and reasonable attorneys fees for a person who substantially prevails in a suit under this section. And I would say that is typical under our, whenever we provide for a private right of action in our statutes, we typically provide for reasonable costs and attorneys fees as well. And so private right of action, we have a certain title nine consumer protection. That's right. So we've got, we've have it entitled nine, the consumer protection chapter. We have it entitled 18, a person who's, who is injured or damaged by a violation of any provision entitled 18, or any real adopted pursuant to title 18 has a private right of action. Also under our, some of our labor statutes, for example, in our OSHA statute, a person can bring a private right of action. In title nine, our discrimination public accommodations statute, we provide for a private right of action. Those are just some examples, and I can certainly provide more. Where do I start here? Maureen, can you go back? I think it was in the Supreme Court decision in Pennsylvania, you mentioned spousal notification was struck down. And what did you say about, I think you said something about a waiting period, I think in that same decision. So Pennsylvania had one of the, one of the ways that Pennsylvania regulated access to abortion was to provide that person seeking an abortion had to wait 24 hours before they could undergo an abortion. And that was upheld by the Supreme Court in the Casey decision as not imposing an undue burden on a patient. I asked that because I heard it differently. So you talked about some restrictions or whatever in first and second trimesters. What about the third trimester as far as Roe goes? So Roe talked specifically about the viability of a fetus. So it said that a state can regulate if the state's interest is in the potential life of the fetus, the state can only regulate for that interest after the fetus is viable. So in the 70s, I think that was considered to be around the third trimester. Right, right. And I know I heard you right on this, but can you just repeat the part where you talked about where doctors and practitioners can't be forced into? Yes. So nothing about age 57 imposes any obligation on a new provider to participate in an abortion or provide an abortion. It only prohibits public entities from interfering with the right of a provider to provide an abortion if he or she so chooses. And again, this one, I think I know the answer. But eggs, embryos, or fetuses under federal or state law have no rights at this point, right? I'm sorry, will you repeat the question? Yeah, as of right now, do eggs, embryos, or fetuses have any individual rights under state or federal law? In Vermont, no. There are states that have passed legislation that imposes what is called personhood on a fetus, which allows recovery under the criminal statutes for the injury or death of a fetus. So let's say that this passes as it's written out. Are there any actual on the ground changes in Vermont? Does passing this law actually change anything about the way abortions are currently performed, any safeguards? No, it doesn't change anything about the way a person could access abortion in Vermont, no. And let's say that, let's say Roe v. Wade was totally undercut and things fell back to the state and we have this in place. Again, it's just a continuation of on the ground nothing materially changes. Yes, I would say that's accurate. Thank you. So I just have a question on the definition of the sterilization in Section 2 of that. What would that be? A sterilization procedure. So I'm not a provider, so forgive me for my terminology, but I think of asectomy as a sterilization procedure. I'm not sure if a hysterectomy is considered sterilization, but it's typically a surgical procedure to ensure that a person can't get pregnant. The reason I was asking is because I know that's something that I hear a lot about people at least in other states. I don't know what our current statute, at least on sterilization is, but having to be a certain age before you can get them or having to get permission from parents or husband or something like that. In the case of women, I don't know if there's anything on the books as far as men other than being female. So Vermont does not require a woman to get permission from her spouse before she's sterilized. I'm neither. This is one of the things that you hear bandit about, I wanted to know. It's just really preparing for tomorrow night so that we may listen to the public. So maybe this is a question for others. I know in some places where abortion is permitted by law, there's still a lot of medical facilities or doctors that won't perform abortion. So there's no guarantee that, I mean, that can happen whether or not there's a law in place. Is there anything that has been done legislatively to provide more comfort to doctors that are nervous about either safety or somehow being held vital in some way? I mean, it looks like there's protection, but I don't know what there could be. So the Human Services Committee has heard testimony from providers and also from some hospital administration staff about existing policies that govern situations where a provider for a moral or religious reason does not want to participate in certain procedures. I think abortion is one and I think death with dignity is another. And the testimony that they heard is that there are procedures in place at Fletcher Allen and other institutions that they heard from that provide a pathway for a provider to notify their employer that they do not want to participate in these types of procedures and they don't have to and there's no repercussions for not participating. So I know that doesn't quite answer your question. I don't think that they're, I know that they're in the death with dignity statute. There's some language that I think specifically gives providers the right to opt out. I have not heard any testimony in that Human Services Committee about providers being concerned that they would be obligated under the bill. We don't talk about insurance companies at all. Like might it be that large, I don't know, multi-state ones probably end up deciding that they're not going to cover it. And so if it's not, and I'm not necessarily thinking about, actually originally I was thinking about medical liability insurance rather than like patient insurance. So I don't know if there's anything that, again, it would be legal to perform abortions, but doctor would not be able to get like adequate liability insurance. I see. Can you restate the question? So I guess I'm wondering if there's anything that needs to be addressed related to liability insurance to cover doctors so that it isn't a burden to do it in certain states, that there's some. I see. Okay. You know, let me consult with some of my colleagues in legislative council and come back to you. And did we in any of these, like both for end of life and abortion, doctors don't need to, like it'd be helpful if doctors said in there, you know, no smoking, we don't do abortions or end of life. I mean, it's just hard to connect with a doctor and then find out 20 years later, if you or 10, whatever. Like, they are not willing to do abortions and you didn't know that when you entered being their patient or doing end of life. And so I appreciate that people don't have to do it that don't want to. But is there any sort of duty to notify patients as to if it's performed, if these are performed or not so that somebody. Well, I think that there is an affirmative duty of a provider to provide comprehensive information about a patient's circumstances and options for the patient. Even if they won't perform that. So for example, if you were, I know we're not trying to end of life, but if you were likely would meet the criteria for end of life, the doctor might say, I don't do that, but that is something that's available to you. Or you're under three months pregnant, you have the right to have an abortion if that's the direction you're going in. Well, I think, I mean, this might be a good question for providers. Because I, my services, yeah. Yeah, okay. All right, because that's not really us, but yeah. Okay. Sorry. No. No. Thanks for your question. Thank you. Thank you. Thank you.