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Hey, South Dakota: Consider Vermont’s Proposal 5 on Reproductive Autonomy for 2024

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.

4 Comments

  1. kurtz 2021-09-11

    A 1986 amendment to federal law that allows tribes to acquire off-reservation land to serve the needs of its peoples has been affirmed by an appeals court. Even if the Oglala Lakota Nation doesn’t build a casino at the entrance to Badlands National Park it’s time to test South Dakota’s jurisdiction over nations where cannabis is legal and for tribal medical professionals to establish clinics that perform abortions on these non-contiguous parcels as islands of health care that supersede state law.

  2. mike from iowa 2021-09-11

    magats can’t comprehend least restrictive means Magats can pile burden upon burden to women exercising constitutional right to abort a fetus, but won’t force religious groups to sign/fill out a federally required exemption when it comes to paying for birth control for women members. Too burdensome.

  3. kurtz 2021-09-13

    Thank you, Nino Scalia, for reminding us why Democrats need to control not just the federal bench but every court and every jurisdiction. Court packing is Herr Trump’s legacy and will take decades to fix. Just say it: radical christianic terrorism.

  4. Mark Anderson 2021-09-13

    Cory, you have to believe. The Republicans have been using their anti abortion advocates for years for votes. Its important to them but they are way, way in the minority among the populace. They didn’t count on succeeding. This rapid change from Roe v Wade will kill them and rather quickly. It will become important to all voters in a way it hasn’t been so in the midterms next year we will see the first fruits of this.

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