AUGUSTA, Maine — Mainers recently took the rare step of granting themselves a new right. Voters may get more chances to do so with states taking a bigger role in national debates.
Lawmakers this year have submitted at least nine proposed amendments to the Maine Constitution to grant new rights, more than the total submitted in the last three Legislatures. Some would be narrow, such as an explicit right to abortion. There are more abstract ones, including rights to a “healthy environment” and to be “free from hunger.”
Many of these ideas have passed in other states, particularly after the U.S. Supreme Court overturned Roe v. Wade last year. Few of the proposals would bring quick changes, but they will still prompt nuanced debates, and there is no telling how courts and the public may view any successful changes in a century or more.
“It is a big thing to add a constitutional amendment,” said Rep. Sophie Warren, D-Scarborough, who has floated measures guaranteeing the right to an abortion and a healthy environment. “But none of [these] are things that we can take for granted.”
Defining rights has generally been a slow process in American history. The fundamental ones contained in the Bill of Rights effectively lingered unimplemented by the courts for the first 130 years of the nation’s history until legal movements emerged to define them.
In Maine, major extensions of rights have come when the state helped ratify federal constitutional amendments, such as allowing women to vote in 1920 and letting 18-year-olds vote in 1971. None of the first 174 amendments to the Maine Constitution granted brand-new rights.
That streak was broken in 2021. The Legislature endorsed a “right to food” amendment with the necessary two-thirds majorities in both chambers, then Mainers overwhelmingly approved it at the ballot box. It was intended to keep current food regulations in place, although a lawsuit last year used it to test Maine’s Sunday hunting ban. The effect is unclear so far.
That passed after two unsuccessful bids led by Sen. Craig Hickman, D-Winthrop. He is proposing amendments this year on the rights to freedom from hunger, to health care and of “bodily autonomy,” as well as another aiming to protect voting rights. On Thursday, he declined to discuss details of his measures and said he may not pursue each one this year.
Voters in Vermont, California and Michigan enshrined abortion rights after the high court’s decision last year. Three states also have a right to a healthy environment, something that failed to pass the Maine House last year. By a razor-thin margin, Oregon became the first state to recognize a right to health care in 2022. Maine lawmakers last voted on one in 2005.
There has often been hand-wringing about whether voters were aware of all the implications. The libertarian-leaning Cato Institute called Maine’s right to food “mysterious.” A skeptical analysis of the Oregon law for the American Bar Association said the right to health care would “create significant budgetary and healthcare delivery issues.”
Montana has had a right to a healthy environment since a 1972 rewrite of its constitution. It was effectively shelved until its top court ruled in a 1999 case over pollution that the provision could be used to stop certain activities. Last year, a group of children and young adults sued the state over energy policies that they say violate this right.
Health care or healthy environment rights could come with the most risks, because ambiguity could lead courts to take actions later on that the public did not intend, Dmitry Bam, a constitutional law professor at the University of Maine School of Law in Portland, said. He added that lawmakers also could address those areas in more specific ways.
“My general approach is a kind of skepticism of going through the judicial process because I worry about how the court would potentially misinterpret some of the language,” he said.
The right-to-food measure benefited from a coalition of progressives and conservatives and was sponsored by the libertarian-leaning Rep. Billy Bob Faulkingham, R-Winter Harbor, who is now the House minority leader. He also was one of the lawmakers behind a right-to-privacy proposal that failed last year.
Sen. Eric Brakey, R-Auburn, is putting a similar measure in this year as a favor to a constituent, and he said it will be focused on digital privacy. He predicted that it and Hickman’s bodily autonomy proposal could win the coalitions needed to pass because they focus on liberties and not entitlements like health care.
“Those aren’t the kinds of rights that our Bill of Rights are built around,” he said.
The abortion debate could be the fiercest. Warren said she is working on the measure with Senate Majority Leader Eloise Vitelli, D-Arrowsic, and that the intent is to freeze Maine’s liberal set of abortion laws into place. It is tentatively modeled on the Vermont amendment, recognizing a right to “carry a pregnancy to term, to give birth to a child, or to have an abortion.”
The two-thirds hurdle would make it difficult for any amendment on the subject to pass, Mike McClellan, the policy director for the anti-abortion Christian Civic League of Maine, said, though an abortion-rights advocate saw hope for a wider coalition in Republican campaign statements against changes to abortion laws.
“I see opportunity there,” said Nicole Clegg, the spokesperson for Planned Parenthood of Northern New England.
