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A Choice Change: Will Vermont Scrap an Old Abortion Law? 

Local Matters

Published January 15, 2014 at 12:55 p.m.

Fair Game is Seven Days’ weekly political column.

Roe v. Wade remains the law of the land, but antiabortion advocates have had a remarkable three-year run restricting access to the procedure. According to the Guttmacher Institute, an abortion rights group, 22 states passed 70 new laws limiting the practice in 2013 alone.

This year, abortion rights supporters are hoping to notch a few wins of their own in states that hue to the blue end of the political spectrum.

In New York, Gov. Andrew Cuomo is pushing what he calls a “Women’s Equality Act,” one of whose provisions would codify a woman’s right to choose. And here in Vermont, some legislators are hoping to remove from the books an ancient, unenforceable law that criminalizes the practice of providing abortions.

“I would say with the exception of here and a couple other places, our strategy is much more reactionary. It’s more defensive,” says Nick Carter, Vermont lobbyist for Planned Parenthood of Northern New England, whose parent organization is behind the push. “I think there’s a consensus that, when possible, we’ll pursue more offensive legislation.”

To that end, Carter’s organization hopes the Vermont legislature will pass a new bill introduced by Sen. Tim Ashe (D/P-Chittenden) and five others that would excise from statute an 1846 law punishing abortion providers with five to 20 years in prison.

To be clear, the old law hasn’t been in effect since 1972, when the Vermont Supreme Court ruled on Beecham v. Leahy & Jeffords (yes, that Leahy and Jeffords), which struck it down. Because the state simultaneously deemed it legal to obtain an abortion but illegal to provide one, the court decided, it was “subject to the charge of hypocrisy.”

The next year, of course, the U.S. Supreme Court handed down Roe, which found that the due process clause of the 14th Amendment protected a woman’s right to obtain an abortion.

So if not one, but two courts say Vermont’s law doesn’t fly, what’s the point of repealing it?

“The effect of passage of the bill would be purely technical,” Ashe says. “Though in light of uncertainty in Washington and in other states, I think there is symbolic impact that Vermont is removing the vestige of a different time, in terms of a woman’s right to choose, rather than returning to that time.”

Ashe isn’t the first to propose the idea of cleaning up Vermont’s abortion-related statutes; nor does his bill go as far as one introduced in the House last year by Rep. Tim Jerman (D-Essex Junction) and 18 others. In addition to striking out the old language, the House bill would affirmatively state that, “The right of a woman to terminate her pregnancy shall not be restricted.”

Jerman says he introduced his bill after learning from a daughter who works at the Guttmacher Institute that Vermont is one of just 12 states with pre-Roe, antiabortion laws on the books. He says that even if there’s no immediate threat to Roe or Beecham, Vermont should still take action.

“When Vermont leads on almost any issue, it’s noticed nationally,” Jerman says.

Mary Hahn Beerworth, executive director of Vermont Right to Life, calls the whole discussion “a joke.”

“If they take it up, we’re going to be pointing out that it’s a nonsensical waste of time,” she says. “The legislature is doing, knee-jerk, whatever Planned Parenthood wants them to. Could they stop and see if there’s an actual problem they’re trying to address?”

Whether the legislature will actually take action this year remains an open question. While majorities in both the House and Senate favor abortion rights — as does Gov. Peter Shumlin — there is some risk that bringing it to the floor could result in unintended consequences, says Senate Judiciary Committee Chairman Dick Sears (D-Bennington).

“It’s always an issue of who might amend it,” Sears says. “It might put people on record on certain issues.”

Of course, that might not be a bad thing for Democrats and Progressives hoping to distinguish themselves from Republicans on more popular, social issues ahead of an election that will surely focus on the challenges of health care reform.

Sears, whose committee will determine whether Ashe’s bill moves forward, says that the legislature typically leaves standing statute alone until it has some other reason to meddle with it. But, noting that he supports abortion rights, Sears says, “I don’t have a problem with picking it up at some point this session.”

Vermont Health Dis Connect

Gov. Shumlin did a masterful job last week of changing the subject in the Statehouse to something other than Vermont Health Connect.

On the first day of the legislative session last Tuesday, the gov got out in front of lawmakers who’ve grown testy over chronic technical problems plaguing the state’s federally mandated insurance exchange. At a rare appearance before the House and Senate health care committees, he announced that he would dispatch Commerce Secretary Lawrence Miller to troubleshoot the system and hire an outside entity to investigate its persistent problems.

Vermont Health Connect, he assured committee members, was “hitting its stride.” What’s more, he said, the website’s problems wouldn’t deter him from pursuing universal health insurance by 2017.

And then he moved on.

The next day, Shumlin devoted all 34 minutes of his ceremonial State of the State address to a single subject: the opiate crisis he said is threatening Vermont (see Local Matters story). Nary a word was mentioned about Vermont Health Connect.

Shumlin’s singular focus on opiates was so compelling and so unique that even the national press corps took notice of little old Vermont — home of ice cream, teddy bears and now, um, heroin addicts. An on-the-scene report by the New York TimesKatharine Seelye, which briefly sat atop the Grey Lady’s homepage Thursday morning, spawned a flurry of news hits for the gov.

Soon enough, Shummy was talking opiates on PBS, NPR, MSNBC and any other station that could book him.

Unfortunately for Shumlin, with legislators back in town after an eight-month siesta, it wasn’t that easy to shake the Vermont Health Connect story.

Later in the week, insurance company officials told members of the House Health Care Committee they needed to know within weeks whether problems processing small business employees’ premium payments would be resolved. If not, the insurers said, they’d seek yet another contingency plan: to allow businesses still lacking new health plans to bypass the state’s website and enroll directly with the carriers.

Speaking on VPR’s “Vermont Edition” Friday, Shumlin said he hoped to work out the kinks in time to meet the insurance companies’ deadline. But, he hinted, “If there is a contingency needed, we’re going to deploy it.”

Sure enough, that contingency was deployed Tuesday morning.

Department of Vermont Health Access Commissioner Mark Larson, who oversees the exchange, told reporters at a Winooski press conference that, once again, the administration had fallen short of its goal: The system still couldn’t process payments for small businesses seeking to insure their employees.

In order to provide “clarity” and “predictability” to employers, Larson said, those required to select new plans by April 1 would now be required to sign up through the insurance companies — not Vermont Health Connect’s website.

“Our decision today isn’t based on an impending deadline,” Larson said, but rather a desire to provide “time and clarity” to employers to get the job done.

Not everyone bought the “predictability” spin.

Vermont Chamber of Commerce President Betsy Bishop, who has been calling for such a contingency plan since October, said later Tuesday, “Very little about small business enrollment in Vermont Health Connect has been predictable over the last four or five months.”

First, businesses with 50 or fewer employees were told they had to enroll through the website by December. Then, they were told in November they could also choose to put it off until April 1 or enroll through their carrier. In December, businesses that opted to stick with the website were told that, like it or not, their new plans might not take effect until April. Now, they’re being told to skip the website altogether and just call the insurance companies.

“It begs the question,” said Lt. Gov. Phil Scott, a Republican, “When all is said and done, if we’re saying insurance companies are better able to process payments after all we’ve done, what have we gotten for the eightysomething-million dollars we’ve spent? Because we’ve gone back to what we had before: The insurance companies are doing the processing.”

In the legislature, Tuesday’s announcement threatens to add fuel to the fire.

House Minority Leader Don Turner (R-Milton), who’d planned to reiterate his calls for such a contingency plan at a press conference scheduled for Tuesday morning, said he’s “disappointed it took so long for the governor to come to this conclusion. I mean, we’re 14 days into the month of January. We were calling for this back in October.”

Democratic legislators, meanwhile, are wary of being blamed for the website’s woes.

House Health Care Committee Chairman Mike Fisher, who said he told administration officials he favored the deployment of the contingency plan, said he’s relieved they took action. But he said he plans to continue holding weekly hearings to monitor the situation.

“I think my job at this time is to continue to shine a bright light on the process and continue to push all the entities to get the system working,” he said.

When Shumlin delivers his budget address Wednesday, he’ll surely continue to focus on opiate abuse — a worthy subject, if ever there was one. But with the Klieg lights shining on Vermont Health Connect — at least until those pesky legislators go home in May — it’s unlikely Shumlin will be able to change the subject completely.

Media Notes

As we reported online over the holidays, Seven Days has hired former VTDigger reporter Alicia Freese to cover Burlington, health care and higher education. A Tunbridge native and Pomona College graduate, Freese went to work for Digger in September 2012 and covered everything from human services to statewide politics.

Freese fills the second new reporting position at Seven Days since former Valley News editor Jeff Good was named as the paper’s coeditor for news in September. Freese started Monday.

Replacing her at VTDigger is Laura Krantz, who comes from MetroWest Daily in Framingham, Mass. A Boston University grad, Krantz won the New England Newspaper & Press Association’s 2013 Morley Piper First Amendment Award.

The Lebanon, N.H.-based Valley News, meanwhile, has promoted longtime editorial page editor Martin Frank to replace Good as the paper’s editor. Frank was a reporter and editor at New Hampshire’s Keene Sentinel before joining the Valley News in 1986.

Disclosure: Tim Ashe is the domestic partner of Seven Days publisher and coeditor Paula Routly).

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About The Author

Paul Heintz

Paul Heintz

Paul Heintz was part of the Seven Days news team from 2012 to 2020. He served as political editor and wrote the "Fair Game" political column before becoming a staff writer.


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