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17 February 2010

What Are the Implications of 'Personhood?'

By Ari

If fully implemented, the so-called "personhood" measure that may again appear on Colorado's ballot to define a fertilized egg as a person will outlaw all or almost all abortions, excepting procedures necessary to save the life of the woman. On that point advocates and critics of the measure agree. More contentious are claims about the measure's impact on birth control, fertility treatments, and legal issues surrounding miscarriages and women's health.

Ironically, a document from PersonhoodCO (the organization supporting the measure), "Scare Tactic Alert", attacks straw men, ignores substantive criticism, and obscures key issues of the debate even as it promises to reveal the "outright lies" of critics and to give "truthful answers." However, the document does clearly reveal the intentions of the measure's supporters on a number of important points. It is worth reviewing to note both where it misleads and where it clarifies the positions of the measure's sponsors.

"It Will Ban Abortion"

The document says flatly of the measure: "It will ban abortion." If passed and implemented, it will ban all elective abortions. It will ban all abortions even in cases of rape, incest, and fetal deformity.

Embryonic Stem-Cell Research Will Be Banned

Under the "personhood" measure, any scientific research or medical procedure that involved the destruction of a fertilized egg (or embryo at any stage) would be outlawed, as the measure's sponsors loudly declare.

Abortion Will Be Deemed Murder

The document makes clear that, under the "personhood" measure, a woman will be criminally charged for getting an abortion. A woman will be charged with a crime if she "acted with criminal culpability which includes the performance of an act and a matching criminal intent. These standards would be the same as would be applied to any mother who harms her children, born or preborn."

The document confirms: "actions taken with criminal intent will be punished under the existing criminal code, irrespective of whether the child is in or out of the womb."

Abortion Could Trigger the Death Penalty

Not only would abortion be considered murder under the "personhood" measure, it could be punished with the death penalty. This applies both to doctors who perform abortions and women who get them.

The document denies that the measure "will threaten doctors who perform legitimate surgeries." However, a "legitimate" surgery, according to the document, cannot include any intention "to kill the child in the womb."

The document states: "In Colorado, the death penalty is only available for first degree murder with aggravating factors. First degree murder requires deliberation and intent."

While the document does not directly state that the death penalty could also apply to women who obtain abortions, the document states that women will be punished "under the existing criminal code." By implication, if a woman deliberately and intentionally aborts an embryo or fetus, she could be subject to the death penalty.

Colorado Statute 18-1.3-1201(1)(a) states, "Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment..."

Birth Control That Can Prevent Implantation Will be Outlawed

The "Scare Tactic Alert" document claims it is a "lie" that the measure "will ban contraception." However, the document also defines "contraception" strictly to mean something that prevents the fertilization of an egg. Any form of birth control that prevents a fertilized egg from implanting in the uterus will be outlawed under the measure. Notably, this includes the birth control pill.

The document states: "the beginning of life (under normal sexual reproduction) takes place when the sperm touches the ovum. Barrier methods of contraception that prevent the union of the sperm and the egg will not be outlawed, since neither a sperm nor an egg by itself is a human being."

The birth control pill acts primarily as a contraceptive, in that it prevents the fertilization of an egg. However, according to the documentation distributed by the manufacturers of the birth control pill, it can also act to prevent the implantation of a fertilized egg.

For example, my wife takes TriNessa. According to WebMD, this birth control pill acts to "prevent pregnancy in 3 ways. One way is by preventing the release of an egg (ovulation). A second way is by changing the cervical mucus, making it more difficult for an egg to meet sperm (fertilization). A third way is by changing the womb lining, making it difficult for a fertilized egg to attach to the lining of the womb (implantation)."

Watson Pharmaceuticals, the producer of TriNessa, agrees that this pill can act to "reduce the likelihood of implantation."

As Diana Hsieh and I review in our paper on the subject (page 4), the birth control pill is more effective than condoms at preventing unwanted pregnancy. My wife and I find it to be the best form of birth control for us, and we utterly reject the insane claims of of the "personhood" advocates that using the birth control pill is morally wrong, much less the equivalent of murder that should subject women to severe criminal penalties.

Most Fertility Treatments Would Be Outlawed

PersonhoodCO claims it is a "lie" that the measure "will ban in vitro fertilization." However, as Diana and I explain in our paper, fertility treatments generally involve the destruction of fertilized eggs as a necessary aspect of effective treatment (see pages 6-7).

The "Scare Tactic Alert" document admits that fertility treatments that involve the destruction of fertilized eggs would be banned. The measure would, in effect, practically ban fertility treatments for nearly all women.

As Diana and I summarize, "[F]ertility clinics would be left with two options. They could fertilize one egg at a time, vastly raising the costs and time of the procedure because most eggs don't fertilize. Or they could implant all fertilized eggs into the woman, in some cases posing a health risk or producing more children than a couple can raise well. The practical result of Amendment 48 likely would be to shut down Colorado's seven reproductive clinics."

Doctors Would Be Subject to Prosecutorial Oversight

PersonhoodCO states, "[I]n those extremely rare situations where a woman needs treatment that might unintentionally result in the death of the child, the doctor would not have acted with intent to kill or even harm the child, but with intent to cure the mother." (Note here that PersonhoodCO is simply defining any procedure "where a woman needs treatment" as not counted as an "abortion.") Furthermore, when abortion was outlawed "there were no prosecutions of doctors for legitimate medical treatment," the document claims.

There are two main problems with these claims of PersonhoodCO. First, what counts as a "legitimate medical treatment" is precisely the issue in question. Now, who decides such matters is the woman in consultation with her doctor. Under the "personhood" measure, politicians, prosecutors, and judges will decide. Knowing this, doctors will tend to err on the side of not acting to protect a woman's health. If a doctor chooses not to take action in a difficult case, he will suffer no criminal penalty even if the woman dies. If the doctor chooses to act, he may be charged with murdering a zygote by a prosecutor who doubts the procedure was necessary.

Second, today doctors have much better equipment and procedures than they had several decades ago, so doctors today simply have more opportunities to medically intervene to protect a woman's health.

The broader issue is that doctors may effectively be prevented from acting in cases where "only" the woman's health, rather than her life, is at risk. By the logic of the "personhood" measure, a doctor should at least sometimes allow a woman to suffer long-term health consequences in order to save a zygote. The measure takes such determinations out of the hands of women and doctors and places them in the hands of government officials.

Suspicious Miscarriages Could Invite Prosecution

PersonhoodCO claims it is a "lie" that the measure "will threaten women who miscarry with criminal prosecution." The problem with that claim is that telling the difference between an unintentional miscarriage and an intentional act can be difficult. Who gets to decide whether a woman's diet, herbal remedies, or physical damage was intended to cause an abortion? Again, under the "personhood" measure, the answer is government officials, so far as prosecution is concerned.

The Abortion Industry?

One of the more dishonest claims made by PersonhoodCO is that criticisms are coming from "the abortion industry." No doubt clinics that perform abortions also oppose the measure. However, many independent critics, including Diana and me, are in no way a part of the "abortion industry," and PersonhoodCO's smears are childish and dishonest.

Diana and I wrote our paper, Amendment 48 Is Anti-Life: Why It Matters That a Fertilized Egg Is Not a Person, without financial compensation. We wrote and promoted that paper because we are horrified by the vicious nature of the "personhood" measure.

Any reader of our paper will realize that PersonhoodCO is attacking straw men in its "Scare Tactic Alert." We do not, for example, claim that the measure "will ban contraception." Instead, we claim, as PersonhoodCO itself claims, that the measure will ban forms of birth control that may prevent the implantation of a fertilized egg.


At least the "Scare Tactic Alert" clearly lays out many of the intentions and implications of the "personhood" measure. Unfortunately, the document also smears critics of the measure, distorts what critics of the measure have said about it, ignores substantive criticism published in 2008, and understates the impacts of the measure in areas such as the potential for criminal prosecution in cases of suspicious miscarriages.

By implying that all criticisms of the "personhood" measure are "scare tactics," PersonhoodCO wrongly suggests that substantive criticisms of the measure have been exaggerated. Notably, not a single advocate of the "personhood" measure has attempted to directly refute anything from the 2008 paper.

Critics of the "personhood" measure do not need to resort to "scare tactics" to defeat it. The objective facts about the measure and its implications are truly horrifying.

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