Amendment 48: Reply to the Gazette

An October 29 editorial by the Colorado Springs Gazette urges voters to "get real," yet in endorsing Amendment 48 the editorial ignores all the realities about the measure and its flaws. Here I reply to the editorial point by point (all indented text is from the editorial).

The moment the egg is fertilized... it becomes a microscopic person with a unique genetic code. Similarly, the acorn becomes an oak tree, in seedling stage, when it germinates. Basic science tells us a sprouted acorn is not a lifeless mass; nor is a zygote.

A fertilized egg has a unique genetic code, true, and it is not a "lifeless mass," for it is definitely alive (as are the unfertilized egg and the sperm cell). But where does the Gazette get the notion that a fertilized egg is a "person," with all the same rights as a newborn? The editorial offers no answer.

Let us review what Amendment 48 would do. It would add a new section to Colorado's constitution stating, "As used in Sections 3, 6, and 25 of Article II of the state constitution, the terms 'person' or 'persons' shall include any human being from the moment of fertilization." Those other articles explicitly bestow the rights to life, liberty, property, equality of justice, and due process of law.

Amendment 48 does not say that a fertilized egg is alive, nor that it has human DNA, nor that it is a potential person. It says that a fertilized egg is a person, with all the legal rights of a born infant. And that is a key point that the Gazette steadfastly ignores.

The comparison to an oak tree is interesting though peripheral. I've never heard a single person call a sprouted acorn an "oak tree," and the two have obvious differences. Regardless, the comparison goes only so far, because a germinated acorn is not contained within and completely dependent upon the body of an oak tree, as a zygote is relative to a woman. That fact matters when it comes to individual rights, yet it is another crucial point the Gazette ignores.

Amendment 48... would establish a rational, scientific, reasonable and legal definition of when human life begins.

This is wrong on two counts. First, Amendment 48 does not attempt to define when life begins; it attempts to define when personhood begins. Second, life does not begin at conception; it precedes conception.

Voting "yes" on Amendment 48 is a vote for honesty, not a decision to outlaw contraception, abortion, cloning or fetal stem cell research. ... The highest court in the land told all 50 states they must protect the rights of mothers to kill fetuses that haven't progressed into the third trimester of pregnancy.

However, the stated goal of the advocates of Amendment 48 is to use the measure in an attempt to overturn Roe v. Wade. If Amendment 48 were enforced -- which would depend on rolling back federal provisions -- then it would outlaw any act harmful to a fertilized egg, except perhaps abortion to save the woman's life.

But few Americans would support the needless torture of a fetus. Few would support the killing of a preborn child by a drunken driver or an attacker, against the mother's will. Some of America's most pro-choice citizens would object to gratuitous experimentation, abuse or killing of fetuses. A definition of unborn humans as "persons" would aid society in protecting some rights of the unborn, should society choose to do so.

The pregnant woman has rights, and thus anyone who harms her fetus is subject to criminal prosecution. It is simply not possible to harm a fetus without harming the woman in the process, and the woman as the carrier of the fetus has the right to protect it. Amendment 48 is not about banning gratuitous injury to a fetus; it is about granting a fetus full legal rights. (Anyway preventing gratuitous injury does not rest on the definition of personhood; for example, rightly or wrongly the law prevents gratuitous injury to dogs.)

Opponents of the measure have raised alarming concerns. They claim that any woman who takes the morning-after pill, which can abort a fertilized egg, could be convicted of first-degree murder should Amendment 48 pass. They say the law would outlaw abortion, even resulting in criminal investigations each time a woman suffers a natural miscarriage. They don't happen to mention that Colorado is forbidden by federal law to outlaw abortion.

Diana Hsieh and I certainly do discuss the interplay between federal and state law in our paper; see pages 2-3. We also point out that Kristi Burton, sponsor of Amendment 48, wants to use the measure to overturn Roe v. Wade.

I have heard nobody claim that "natural miscarriages" would "each" be subject to criminal investigation. Rather, Hsieh and I have correctly claimed that any miscarriage suspected of being intentional could be subject to criminal prosecution, if Amendment 48 were enforced.

[Opponents] say state law forbids the killing of a "person," so under 48 abortion is doomed. Yet Colorado has the death penalty, and there's no question that death row inmates are "persons."

Nobody argues that any fetus is guilty of felony murder, so the comparison is bizarre.

Abortion is legal in Colorado because state law says it's legal. ...

Yet Amendment 48 is a constitutional provision, and as such it would trump any statute.

Perhaps there was a time of primitive science when intelligent adults didn't know when life begins.

Again, this point is irrelevant, and the claim that life begins at conception is obviously false.

The debate regarding legal rights of a fetus should no longer center on the myth that our science is fuzzy. That's a dishonest discussion. Instead, it should focus on what fetal rights a society shall or shall not defend, with full acknowledgement that a fetus is human from the moment of conception.

The fact that a fetus is human does not establish that it is a person. My kidney is human, for example. As Hsieh and I point out, advocates of Amendment 48 routinely rely on an equivocation on the term "human," jumping from the meaning of having human DNA to personhood without argument or evidence.

If abortion laws depend on a misconception that a fetus isn't human, they will not last. If they're based in a societal decision that unborn humans have limited rights, then abortion laws are safe.

Perhaps the Gazette could offer a single example of somebody who claims that a fetus is something other than human, in the sense of having human DNA.

Amendment 48 would merely bring the legal definition of "person" in line with the fact that a fertilized egg is a person in the earliest stage of life.

You notice what argument the Gazette uses to establish this point: none. Yet the Gazette manages to leave between the lines the only "reason" yet offered for thinking that a fertilized egg is a person: religious faith.