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gold domed Vermont State House

Can states preserve access to abortion if Roe v. Wade is overturned?

The gold domed Vermont State House in the capital city of Montpelier. Photo by Brian Eden/Getty Images

As the battle over reproductive healthcare rages at the federal level, some states are taking matters into their own hands. States such as Vermont are trying to enshrine access to abortion, contraceptives, and reproductive care in their own constitutions. 

One such measure, Proposal 5, passed the Vermont House of Representatives on Tuesday and now will go before the voters in November, where it’s expected to receive overwhelming support from Vermonters. If it does pass, Vermont would become the first state to guarantee these protections via its constitution, according to the Washington Post. 

More and more state legislatures are mobilizing in anticipation of the Supreme Court’s decision on an abortion ban in Mississippi, which directly threatens the rights spelled out in Roe v. Wade. Some states, such as Texas, have implemented new, near-total abortion bans, while others are trying to shore up abortion protections. 

All of these legislative efforts anticipate a “post-Roe” world, where “the question of whether or not abortion should be legal will go back to the states,” says Jeremy Paul, professor of law and former dean of Northeastern’s School of Law.

But for those states looking to uphold abortion rights, even a constitutional amendment is not completely foolproof, Paul says. If anti-abortion politics took root in Vermont, for example, lawmakers could simply repeal the amendment and enshrine their own restrictions, he says.

Left to right: Jeremy Paul, a law professor who studies constitutional law and jurisprudence; and Martha Davis, university distinguished professor of law. Northeastern file photos

“By far the most important point is continuing to explain to people why it should be women, and not government agents, who make the fundamental decision about whether they want to become mothers or not,” Paul says. 

Roe v. Wade established a person’s right to an abortion in 1973, and has been reaffirmed by the high court twice since. Those protections are thrown into question in the Supreme Court’s ongoing review of Dobbs v. Jackson Women’s Health Organization, which the court has yet to issue a ruling on—though the justices have signaled that they are poised to overturn portions of Roe v. Wade when the time comes. That could be as late as June, when the current session ends, or as soon as next week. 

There have been other constitutional amendments proposed either to restrict or preserve access to abortion in different states. Pennsylvania state lawmakers, for example, are looking to prohibit the practice outright through a proposed amendment, restricting abortion even in cases of rape, incest, or life-threatening conditions, if Roe v. Wade is overturned. 

And a dozen states already have laws on the books that would immediately enact abortion restrictions should federal protections be dismantled. These dormant, presently unenforceable laws—called “trigger laws”—may become enforceable the moment the Supreme Court issues its decision in the Mississippi case. 

It’s “completely expected” that as the Supreme Court “backs away from precedent,” the states are responding in turn with their own laws and constitutional amendments, says Martha Davis, university distinguished professor of law at Northeastern. 

What’s happening in Vermont is interesting for sure,” Davis says. “There are already ten states that have constitutional protections for abortion, but what’s unique about the Vermont amendment is it’s specifically targeted to abortion.”

Davis says the process taking place in Vermont is not merely symbolic.

“It would be very difficult to reverse something like a constitutional amendment,” she says. 

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