Program Note: The News guy had a personal appointment Tuesday that kept him from Gov. Jim Douglas’s annual budget address to the Legislature in Montpelier. The contents thereof, however, will not be ignored for long. Tune in Friday.

As it happened, Tuesday’s activities did not leave enough time and/or energy for a full post today. But the following correction – or at least clarification –of part of last Friday’s post can not wait. So here it is.

In last Friday’s post (scroll down for the full piece), appeared the following: “Vermont’s old abortion ban remains on the books. It’s 13 V.S.A. § 101, and should (the Roe v Wade US Supreme Court ruling) ever be reversed, (the law) would have to be repealed or abortions would be illegal here.”

Not exactly.

The law is on the books. But so is Beechman v. Leahy, the 1972 Vermont Supreme Court decision invalidating the statute.

Meaning that even if the controversial 1973 Roe decision were overturned (itself hardly likely in the foreseeable future), abortion would not be illegal in Vermont.

At least not unless the Legislature amended the statute to meet the Court’s objection. And a quick examination of both the law and the ruling shows unlikely it would be for the lawmakers to do any such thing.

The statute and the court ruling both relate to the over-all subject of Friday’s post – the introduction of bills that would convey some right of personhood to the fetus. In this context, what is interesting about the law is that while it protects the fetus, it does not treat it as equal to the pregnant woman. If the woman dies, the penalties are harsher than if she does not.

The statute also says that only the person performing the abortion can be punished, but that “the woman whose miscarriage is caused or attempted shall not be liable to the penalties prescribed by this section.”

The court used that provision to invalidate the statute. According to a paper delivered in 2008 by Vermont Law School Professor Cheryl Hanna (Hanna writes more tersely than the court ruling, so she rather than it will be quoted here), “because the Legislature had failed to hold a woman liable for terminating a pregnancy, it had left her personal rights to here…since the Legislature had granted the woman a right to abort, it could not simultaneously deny her medical aid and expect to save her life. By granting her the right to abort, it must also grant her the right to safely

exercise it.”

To resuscitate the statute, Hanna said, the Legislature would probably “have to criminalize women along with providers in order for the law to be deemed reasonable.” It’s hard to imagine any Vermont Legislature taking that step.

This does not mean there is no reason whatever for abortion rights advocates to be concerned about the law still on the books. Beechman does not create a right to abortion under the Vermont Constitution, making it a slightly shakier protection than if it did.

Nor does it mean that laws creating “fetal rights” can not be used to prosecute women (and sometimes men). In one case cited in a document prepared by the National Advocates of Pregnant Women (an advocacy group, obviously, but its examples are backed up by news stories) a South Carolina woman who suffered a miscarriage was arrested and charged with homicide by child abuse.

But it does mean that the suggestion in Friday’s post that the Vermont statute could create a small political problem for Lt. Gov. Brian Dubie in this year’s governor’s race was probably overblown. Dubie may oppose abortion rights. But he’s not likely to veto a bill that the Legislature won’t pass because it won’t have to pass one to keep abortions legal in Vermont, no matter who’s on the U.S. Supreme Court some years hence.