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04 October 2010

'Personhood' Blue Book Challenge Lacks Merit

By Ari

I never have liked the Blue Book. It forces Colorado taxpayers to finance the distribution of beliefs with which they disagree, thereby violating their freedom of conscience. The state's Constitution (V(1)(7.5)) requires that "the nonpartisan research staff of the general assembly shall prepare and make available to the public... a fair and impartial analysis of each [ballot] measure, which shall include a summary and the major arguments both for and against the measure." Moreover, "any person may file written comments for consideration."

Such language is a recipe for conflict. Calling the research staff "nonpartisan" doesn't make it so. Proclaiming that it shall issue "a fair and impartial analysis" doesn't mean that it will. Allowing "any person" to file comments invites trolls as well as idiots. The Blue Book guarantees biannual strife and litigation, and this year is no different.

The assembly should mail out a notice of elections with the language of the proposals, and nothing more. It should leave the analysis of the measures to outside individuals and groups. To accomplish this end, the legislature should refer a measure to the ballot in 2012 correcting that section of the Constitution.

But, all that said, the recent Blue Book challenge brought by the advocates of Amendment 62 ("personhood") is utterly without merit. Or, rather, it has a great deal of merit as a publicity stunt, but legally it is groundless.

Electa Draper has the story for the Denver Post. (See also the story in the Denver Daily News.) Draper writes, "Sponsors of Amendment 62... sued the Colorado Legislative Council on Tuesday afternoon to stop distribution of its 2010 State Ballot Information Booklet."

Gualberto Garcia-Jones, a leading proponent of the measure, said, "They have not included a single word -- not a single word -- of our arguments."

His statement is ridiculous.

As is standard, the Blue Book summarizes the arguments for and against the measure, in three sections each. While Garcia-Jones might complain that the "Arguments For" the measure are not as detailed as he would like, certainly they do offer the gist of the case.

It is worth pointing out that the "Arguments Against" section also fails to offer the most fundamental and compelling arguments against the measure. For details, see the paper by Diana Hsieh and me. Certainly, as an opponent of the measure, I have as much legitimate grounds to complain about the Blue Book's language as Garcia-Jones does (which again illustrates the absurdity of a legislative body issuing "a fair and impartial analysis").

In part, Garcia-Jones dislikes the Blue Book because it tells the truth about Amendment 62. Draper writes:

Garcia-Jones said that the Blue Book's arguments against Amendment 62 are false because it could never, as the booklet states, cause women to be denied medical treatment for a miscarriage. The amendment could not, he said, put doctors and other health professionals at risk of legal action for providing medical care to women of childbearing age.

It is also demonstrably false, Mason said, that "the beginning of biological development" has no established legal meaning and is not an acceptable medical or scientific term, as the Blue Book states. Supporters said they provided statements by scientists and lawyers to the contrary.

But the "personhood" proponents ignore the fact that these claims are made in the "Arguments Against" section. They also ignore the fact that the claims in question are legitimate.

Let us review the exact language of the Blue Book:

Arguments Against

1) Amendment 62... could be used to prohibit or limit access to medical care, including abortions for victims of rape or incest, and even when a woman's life is in danger. Amendment 62 may also limit access to emergency contraception, commonly used forms of birth control, and treatment for miscarriages, tubal pregnancies, cancer, and infertility. The measure may restrict some stem cell research that could lead to life-saving therapies for a variety of disabilities and illnesses.

2) Amendment 62 allows government intrusion in the privacy of the doctor-patient relationship and could limit the exercise of independent medical judgment. The measure could restrict a doctor from using certain medical procedures and treatments. Further, "the beginning of biological development" cannot be easily and conclusively pinpointed. Therefore, the measure may subject doctors and nurses to legal action for providing medical care to a woman of child-bearing age if that care could affect a "person" other than the identified patient.

3) The effects of Amendment 62's change to the constitution are unclear. The measure applies certain rights from "the beginning of biological development," a term which is not defined within the measure, has no established legal meaning, and is not an accepted medical or scientific term. ...

It is important to notice that, among those many claims, the only ones the proponents of Amendment 62 took issue with pertain to treatment for miscarriages and the meaning of "the beginning of biological development." Most of the rest of the points are quite obvious and beyond dispute. Amendment 62 would ban every elective abortion, including for rape, incest, and terminal fetal deformity. It would ban every form of birth control that could prevent the implantation of a fertilized egg, including the pill, IUD, and "morning after" drugs. It would ban fertility treatments and medical research involving the destruction of embryos. Nobody disputes these points. The remaining points of contention involve medical intervention and the meaning of terms.

As Diana Hsieh and I exhaustively explain, Amendment 62 would indeed sometimes threaten the health and lives of pregnant women. Garcia-Jones specifically mentions medical treatment for miscarriages. True, if the doctor knows the miscarriage has already occurred (and therefore that the embryo is already dead), he would have no fear to intervene. The problem is that a doctor might face criminal prosecution for intervening prematurely, before a miscarriage. Thus, the language of the Blue Book on that score is correct.

What of the dispute over the meaning of the phrase, "the beginning of the biological development of that human being?" As Diana Hsieh and I argue, the phrase is indeed ambiguous. While I do not doubt that "personhood" advocates could find innumerable quack doctors and scientists to testify that the phrase obviously pertains to the moment of fertilization, in fact it does not. Certainly the point is quite appropriate for the "Arguments Against" section.

The "personhood" challenge to the Blue Book is ridiculous. But it is an effective way to abuse the legal system for free publicity.

This article originally was published on Ari Armstrong's blog.

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