Abortion has been legal in Vermont for four decades, but the state has a law on the books that makes it a crime for a doctor to perform an abortion and is subject to jail sentence of 10 years.
The criminal penalties remain in Vermont statute even though the Vermont Supreme Court invalidated the law in 1972 in its decision in Beecham v. Leahy and Jeffords, and the 1973 U.S. Supreme Court decision in Roe v. Wade made abortion legal in the United States.
State senators hope to repeal the statute this session with the passage of S.315. The bill will likely be taken up on the Senate floor this week. Members of the Senate Judiciary Committee -- Sens. Alice Nitka, Tim Ashe, Dick Sears, all Democrats, and Joe Benning, a Republican -- voted 4-0 to support S.315. Sen. Jeannette White was absent.
"It's important to repeal this at a time when future rulings of the U.S. Supreme Court are really quite frankly up in the air. I would hate for Vermont to go back and repeal this at a future time," Sears said.
Eric Fitzpatrick, a lawyer for Legislative Council, said the Legislature hasn't attempted to repeal the statute until now.
The case that invalidated the state law, Beecham v. Leahy and Jeffords, involved Jackson Beecham, a doctor from St. Johnsbury, Jacqueline R., a welfare recipient who was seeking an abortion, and then Chittenden County State's Attorney Patrick Leahy (now a U.S. senator) and the Vermont Attorney General James Jeffords (who also became a U.S. senator).
On the face of it, Leahy and Jeffords argued for the state and in its ruling, the Vermont Supreme Court took the side of the woman and her doctor and invalidated the state statute.
Leahy says the backstory behind the ruling is more complicated than that.
Abortions were against the law then, but Leahy told doctors at Fanny Allen Hospital and the Medical Center of Vermont (now Fletcher Allen Health Care) that if they performed the procedure in a medical facility he would not investigate or prosecute them.
"I had total discretion as state's attorney to prosecute or to not prosecute even valid laws that I might decide were not in the best interest of the state to prosecute a crime," Leahy explained.
At one point, he got a call in the middle of the night about a young woman who had nearly bled to death from a botched abortion. Leahy investigated and found that the abortion was procured by a local man with a long criminal record. It turns out the man would help young female coeds get abortions and then he would blackmail them afterward for money or sex, Leahy said.
When Leahy prosecuted him, the defense attorney said he would fight the case.
"It turned out he was having the abortions performed by a woman from Montreal who had come down to do them," Leahy said.
Leahy brought the woman to court, escorted by Canadian Mounties. In negotiations, he told the attorney that "she will testify that she learned to perform abortions on prisoners in Auschwitz. ‘Now do you want to go to trial? Do you want to trust your luck with that jury?' They pled guilty."
Soon after Leahy sent the blackmailer to jail, he talked with doctors about the case. They were concerned that eventually they would be prosecuted under state statute and subject to a 10-year felony conviction.
"They knew I'd keep my word, but the next person would not be bound by what I had done and could not be," he said.
Leahy told the doctors he didn't want someone dying from an abortion, "despite how anyone feels about abortion," and he began to think of a way to bring the situation to a head. He thought the law had "serious constitutional problems" under the Vermont Constitution.
Jackson Beecham, a doctor from St. Johnsbury, filed an injunction for any prosecution by Leahy, "knowing that I wouldn't prosecute anyway." Beecham sought a declaratory judgment to test the validity of Vermont criminal law related to abortions.
"It was a friendly suit against me to set a new precedent," Leahy said. "The Vermont Supreme Court, they knew what we were doing, but they took it (the case), anyway." At that point, Jeffords, then the attorney general, wanted to get involved, too.
Leahy says he presented the cases that would uphold Vermont's law in his arguments on behalf of the state before the court, then he proceeded to tell the justices that as an officer of the court it was his duty to advise them that the law was unconstitutional and should be invalidated. The Vermont Supreme Court agreed.
"By this decision, we hold that the Legislature, having affirmed the right of a woman to abort, cannot simultaneously, by denying medical aid in all but cases where it is necessary to preserve her life, prohibit its safe exercise," the justices wrote in their decision. "This is more than regulation, and an anomaly fatal to the application of this statute to medical practitioners."
Jeffords under pressure from the Right to Life Committee in Rutland County, his hometown, pressed the court to reconsider the arguments, according to Leahy. The justices declined to do so.
"I remember having the same Right to Life folks who were pressuring the attorney general, pressuring me not to run (for state's attorney)," Leahy said. "I decided to run for something else."
In 1974, Leahy won a seat in the U.S. Senate.
Leahy supports repealing the state law, but he says in a way it doesn't make any difference whether the Legislature does it or not because it's invalidated, but "if they want to take it off the books, then take it off the books."
"As a Vermonter I know the law is unenforceable, and it should be," Leahy said.