I suggested last weekend that women and citizens who care about women should take advantage of the newly extended deadline for initiated-measure petitions to draft some initiatives protecting women’s reproductive rights for South Dakota’s 2022 general election ballot. Having some measures on the ballot, not to mention the billboards, to focus voters’ attention on the assault on women’s rights would help draw voters’ attention away from the pretty pictures of candidates with hats and horses and focus their attention on the real issues at stake in the candidates they choose (“Eyes up here,” on the issues, right, Kristi?).
Of course, supporters of reproductive rights only have time to propose laws for the 2022 ballot: initiated law petitions with 16,961 voter signatures are due May 3, while constitutional amendment petitions with 33,921 voter signatures are still due November 8, 2021. And we know that initiated laws are subject to immediate alteration or repeal by the Legislature, so if we want any laws we approve on the 2022 ballot to stick, we’re going to have (1) elect legislators who will defend them and (2) come back in 2024 with a constitutional amendment to protect reproductive rights.
For an example of such an amendment, we may turn to Vermont, where 2022 voters may get the chance to respond to the Texas Handmaid’s Massacre with Proposal 5, which would add a 22nd Article to Chapter 1 of the Vermont Constitution:
Article 22. [Personal reproductive liberty]
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 [Proposal 5, as approved by the Vermont Senate, 2029 and 2022].
I say voters may get to vote on Proposal 5, since Vermont’s process for amending its constitution is longer than South Dakota’s. The Vermont Senate and House must pass an amendment twice, in successive sessions separated by an election, with a two-thirds majority in the first Senate vote and a simple majority in all other votes, before the amendment goes to the voters for final approval. Proposal 5 still requires a second vote from the Vermont House this winter.
An amendment like Proposal 5 would provide a Plan B for reproductive rights in Vermont if the McConnell-stacked court further succeeds in its theocratic plot to preserve white-male supremacy. But notice that Proposal 5 does not establish an absolute right to abortion. As we are wont, progressives tend to seek balance and legal sense in their laws. Proposal 5 recognizes that no right is absolute. Proposal 5 would not stop Vermont from regulating abortion or even banning certain abortions in certain situations. It would simply make clear that the choice to carry a pregnancy to term is “central to liberty and dignity” and that to infringe on that right, the state must prove (1) that it has a really good reason to restrict abortions and (2) that it is has narrowly crafted its restrictions to impose the least burden necessary to achieve its interests. That’s not radical free-abortion-on-demand politics; that’s standard rational jurisprudence in the finest conservative tradition of limited government.
An amendment like Vermont’s Proposal 5 to South Dakota’s Constitution would not end Leigslative efforts to pass laws restricting abortion. It would simply set a fair and classically conservative standard that such laws would have to meet in court.