Summary: Senate Bill 5 will enshrine sex without consequences directly within the Delaware Constitution. This includes abortion, sterilization, among other things.

Analysis: There are a broad number of laws in DelCode that legalize and protect the practice of abortion. Enshrining it directly into the constitution is a radical approach to ensure that it is without limits.

The amendment is to create the so-called “right to reproductive freedom.” This phrasing typically points towards abortion, but SB 5 is much more expansive. It seeks to define “reproductive freedom” as “all matters relating to pregnancy,” which includes abortion, contraception, infertility care (such as IVF), and sterilization.

This makes the amendment a complete overhaul for sexual freedom. It takes bodily autonomy regarding sexuality to the absolute highest level of protection. Any provision attempted in the future that would hinder sexual, and consequently reproductive, freedom would be difficult to pass and met as a an unconstitutional attack. So protection of the preborn, regulations surrounding IVF, or prevention of the genital mutilation of minors will be practically unstoppable.

SB 5 isn’t just the abortion amendment, it’s the sex without consequences amendment.

As a constitutional amendment, it will need to be passed by a 2/3 majority in both chambers in 2 consecutive legislative sessions. If the 14 Republicans in the House who have historically voted against abortion maintain their position, it will not have the necessary votes to pass.

The bill has now been substituted, adding in:

1. That the so-called individual right to reproductive freedom is only as it relates to that individual’s pregnancy. This is in no doubt a direct response towards Sen. Buckson’s question from the initial Senate hearing regarding how sterilization was defined and if vasectomies were included. This alteration in the wording makes it clear that this bill has no true interest in reproductive freedom, only allowing for the commodification and extermination of the preborn.
2. A change from the standard of medical judgment to “good-faith medical judgment” instead of the previously written “professional judgment.” Though this makes it more aligned with the phrasing used elsewhere in DelCode, it makes the standard itself no less ambiguous.
3. The reference to the health care professional as the “treating attending health care professional” rather than the “attending health care professional.”