By Diana Hsieh
This post is drawn from Ari Armstrong's and my new policy paper: The 'Personhood' Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception. I'm currently posting the full paper as a series of blog posts. You can read the full paper in PDF format or HTML format.
The 'Personhood' Movement Is Anti-Life: Why It Matters that Rights Begin at Birth, Not Conception
By Ari Armstrong and Diana Hsieh, Ph.D
A policy paper written for the Coalition for Secular Government (www.SecularGovernment.us)
Published on August 31, 2010
The Destructive Effects of 'Personhood'
Given that Roe v. Wade remains in force, the impact that any state-based personhood measure may have is not clear. However, what is clear is that the ultimate agenda of the "personhood" movement is to overturn Roe v. Wade and totally ban abortion and other practices that may harm a zygote, embryo, or fetus.
As we shall see, the battle to fully enforce a "personhood" measure would generate a legal quagmire. To the degree that it were enforced, a "personhood" measure would generate horrific consequences--including harsh criminal penalties--in the areas of abortion, birth control, fertility treatments, and medical research.
A Legal Quagmire
A state constitutional provision, such as Colorado's Amendment 62, would be implemented and enforced by legislative action, state and federal court rulings, and policies of police and prosecutors. Thus, while Personhood USA and its sympathizers have stated their views of the meaning of "personhood," their proposed legal measures might be interpreted and enforced differently than they would prefer.
The ultimate legal impact of Amendment 62 (and related measures) cannot be perfectly predicted in advance. What is certain is that "personhood" measures would provoke many years of legal battles in legislatures and courts, ensnaring women and their partners and doctors in expensive, time-consuming, and potentially liberty-infringing civil or criminal proceedings. Also certain is that, the more consistently Amendment 62 were interpreted and enforced, the more ghastly its implications would be.
So long as the Roe v. Wade decision remains in force, state governments would not be able to impose abortion bans. Therefore, the passage of Amendment 62 in Colorado would not immediately ban abortions due to overriding federal policy. However, as discussed in the prior section, overturning Roe v. Wade and outlawing abortion is precisely what the advocates of "personhood" aim to do. That is why religious conservatives express such interest in the abortion-related views of nominated Supreme Court Justices.
Even absent a reversal of Roe v. Wade, a "personhood" measure could have far-reaching consequences. As Alaska's Attorney General Daniel Sullivan wrote in a review of the proposed "personhood" measure in that state, courts could apply the measure "on a case by case basis" in an unpredictable number of ways:
An initiative that sought to prohibit all abortions would be clearly unconstitutional because there is controlling law, Roe v. Wade, that makes such a measure clearly unconstitutional. But there is no controlling law that makes it clearly unconstitutional to extend legal person status to the point of conception. ...[I]n order to avoid a finding of unconstitutionality, the courts could interpret the personhood measure narrowly with respect to its impact on state laws regulating abortion. ...With respect to other contexts, courts would have to decide on a case by case basis the extent to which extending legal person status prenatally should expand the scope of an existing law.Regarding Amendment 62 in Colorado, one possibility would be for the legislature to revise the statutes, and for states and federal courts to "interpret the personhood measure narrowly," in an effort to minimize its impact. Sensing the measure's harmful implications, some legislators and judges might be tempted to wink at the "personhood" language and largely ignore it, but such a practice would spare Colorado residents the worst impacts of the measure only by undermining the rule of law. Moreover, anti-abortion lawyers and activists would surely work doggedly to force the Colorado government to fully implement and enforce the measure.
The change in the language of Amendment 62, in comparison to that of Amendment 48, while intended by the measures' sponsors to make the measure even broader, might instead provide legal grounds to interpret it much more narrowly.
Unlike Amendment 48, Amendment 62 does not explicitly mention fertilization as the commencement of personhood and rights. Amendment 48 said, "The terms 'person' or 'persons' shall include any human being from the moment of fertilization." Amendment 62, in contrast, seeks to apply the term "person" to "every human being from the beginning of the biological development of that human being."
Why did Personhood Colorado change the 2010 language from "the moment of fertilization" to "the beginning of biological development?" The Denver Daily News explains: "Co-sponsor of the ballot initiative, Gualberto Garcia Jones, believes it is important to include even asexual forms of human reproduction, such as if science leads to cloning human beings." Jones told the newspaper, "We would like all human beings, regardless of how they come about, to be covered, because unfortunately there's the possibility that cloning is going on right now, and we want them to be covered as well."
Personhood Colorado's website explains the intended meaning of "the beginning of biological development" in greater detail:
The beginning of the biological development of a human being who is created through sexual reproduction is the instant when the sperm and the ovum touch to form a unique human being. It is different from fertilization or conception in that it accounts for modern forms of asexual reproduction such as cloning. In the case of a cloned human being, his or her biological beginning is when the DNA in the cell/cells is deprogrammed or reprogrammed to the same state of differentiation as a human organism.However, neither legislators nor courts are bound by the sponsors' interpretation of the measure's language, which contains no mention of the sperm touching the ovum. Various voters, lawyers, and judges may argue that a "human being" in the relevant sense means an implanted embryo, an older fetus, or a born infant. By one common-sense reading, Amendment 62 merely states an empty tautology: a human being begins when a human being begins. The ambiguity of the language may induce some to vote for the measure who would not agree with the proponents' views. The ambiguity could also generate even more future legal battles should the measure pass.
The impact of a "personhood" measure would depend on its interpretation and enforcement by various levels of government. Due to its breadth, it would have sweeping effects on a state's legal code, such that its implementation could only be haphazard. As a result, many people would be dragged through civil and criminal trials in test cases for seemingly ordinary actions. However, the advocates of "personhood" have for the most part stated their views of the proposed law clearly, and they would fight to implement the law accordingly. And to the degree that "personhood" is enforced, it would create a police-state nightmare for countless women, their partners, and their doctors.
Harsh Legal Penalties
If passed and enforced, a "personhood" measure would affect the meaning of the criminal law, mandating harsh legal penalties for harm done to zygotes, embryos, and fetuses. Intentionally harming a zygote would be a crime of the same magnitude as harming a born infant, and intentionally killing a zygote would be murder.
Colorado Statute 18-3-102 states, "A person commits the crime of murder in the first degree if...[a]fter deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person...Murder in the first degree is a class 1 felony." Thus, if a zygote is legally a person from the moment of fertilization, then any intentional act of preventing it from implanting (such as by taking the "morning after" pill) or aborting an embryo or fetus would be first-degree murder.
By Colorado law, the punishment for that crime would be life in prison or death. Statute 18-1.4-102 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..."
While few supporters of Amendment 62 would likely endorse such draconian punishments, its intended meaning as articulated by its sponsors leaves no room for doubt: any woman who deliberately harms a zygote or who terminates her pregnancy would be guilty of murder under Colorado law. In fact, at least one Colorado religious leader has explicitly called for the death penalty for abortion (among other alleged offenses). While American Right to Life does not directly advocate the death penalty for abortion, it explicitly calls abortion murder and "advocates the death penalty for everyone convicted of a capital crime."
In addition, coroners, police officers, and prosecutors might be obliged, pressured, or inspired to investigate or prosecute any miscarriage deemed suspicious. A woman suspected of inducing a miscarriage (or attempting to do so) could be subject to criminal prosecution, as could others suspected of helping her in the act.
Similarly, any actions of a pregnant woman that might endanger the welfare of her embryo or fetus could be considered child abuse, which doctors might be required to report. As Indra Lusero and Lynn Paltrow said of Colorado's Amendment 48, "If the amendment passes, Colorado's juvenile courts will have jurisdiction whenever doctors or family members disagree with a pregnant woman's medical decisions."
Read the full paper in PDF format or HTML format.