'Personhood' measure tops ballot controversies

Amendment 48 is one of the most controversial proposals on a ballot filled this year with controversial measures.

Critics say if voters approve it, abortion, some forms of birth control and in vitro fertilization could eventually be outlawed in Colorado.

None of that is spelled out in Amendment 48; its backers say their intent is to protect life, including fertilized eggs and fetuses which deserve the same legal rights and protections as all Coloradans.

The measure makes Colorado the battleground this year over abortion, perhaps the most divisive issue in America over the past few decades.

Compared to other ballot measures, the language of what is known as the Personhood Amendment is simple: “The term ‘person’ or ‘persons’ shall include any human being from the moment of fertilization.”

Amendment 48 would change the Colorado Constitution to define life as beginning at the moment of fertilization, which some abortion opponents define as conception.

“It’s time to tell the truth that this is a person, not a blob of flesh,” said Kristi Burton, a 21-year-old law student in Peyton who helped get the amendment on the ballot.

But Lynn Paltrow, executive director of National Advocates for Pregnant Women, said that when the unborn “have legal rights separate from the woman’s, you create a new category of legal persons and take away the woman’s right of choice.”

The amendment won’t pass without a fight. The NO on 48 coalition, Protect Families, Protect Choices, has raised $830,000, three times as much money as Colorado for Equal Rights, the group supporting and run by Burton. Amendment 48 has also fractured the anti-abortion movement, with some groups denouncing it as naïve and ultimately ineffective.

Legal Debate over 48

Amendment 48 qualified for the ballot in May with 131,000 signatures, nearly twice what was required to put it to a vote. The measure provides the rationale for overturning Roe v. Wade, based on the U.S. Supreme Court’s concession in its 1973 ruling that if the personhood of the fetus was established, the case for abortion “collapses.”

But attorneys interviewed who support 48 don’t connect the dots.

“They are two ships passing in the night,” said Clarke Forsythe, senior counsel for Americans United for Life based in Washington, D.C. “It will have no affect on Roe v. Wade. It wouldn’t even present a test case because the amendment is limited to the (Colorado) constitution.”

Paltrow paints a different scenario.

“If 48 passes, all it takes is one prosecutor in one county to say he is enforcing Colorado law, that abortion is now murder, and file charges against, say, an abortion provider,” Paltrow said. “These cases will slowly work their way through the court system,” perhaps all the way to the Supreme Court, she said.

The ramifications of 48 are immense, critics say:
• Pregnant women being arrested on suspicion of child abuse for drinking alcohol, which could endanger the health — and legal rights — of a fertilized egg or fetus;

• Doctors refusing to treat complications like uterine hemorrhaging and infected pregnancies because to do so could kill the fetus and result in criminal charges against the physician;

• Women using a contraception that impedes a fertilized egg from attaching to the uterine wall, thereby blocking conception, as most doctors define it, resulting in charges of criminal child abuse or manslaughter.

In September, the Colorado Bar Association opposed the amendment, citing the legal chaos it will set off as courts hear cases that redefine the term “person” used thousands of times in state statutes involving all areas of law, including criminal, family, trusts and estates, and health.

But supporters say critics are using scare tactics and that Amendment 48’s time has come. “The fact is, scientifically speaking, from the moment of conception there is a unique individual,” said attorney Dana Cody, spokesperson for the California-based Life Legal Defense Foundation.

“All human life should be treated equally,” Cody said.

Cody dismisses the argument that courts will be clogged with lawsuits against pregnant women and new mothers. “That’s the way law works,” she said.

But attorney Pat Steadman, campaign consultant of Protect Families, Protect Choices, said Coloradans will foot the bill. “When fertilized eggs have court-appointed attorneys, taxpayers need to look at this,” he said.

Burton said Amendment 48 won’t deprive women of their legal rights. “It does not elevate the rights of an unborn child over the rights of the mother,” she said. “If a mother dies, how will the baby live? Both mother and child have a right to life.”
But NO on 48 supporters say courts will decide whose rights are paramount.

Anti-abortion Groups Split on 48

Among the anti-abortion groups against 48 are the National Right to Life Committee and the Catholic Conference of Colorado. Both say the amendment overreaches and, should it pass and wind its way through lower federal courts to the U.S. Supreme Court, justices will either decline to review it or reaffirm Roe.

“We believe there are state-level initiatives that would be more effective in the long-run than Amendment 48,” said Jenny Kraska, executive director of the Catholic Conference.

Focus on the Family Action, the political arm of Colorado Springs-based ministry, has not endorsed 48 for similar reasons. But Focus Action still promotes the measure on its radio show hosted by Focus founder James Dobson and its Web site, citizenlink.org.

Carrie Gordon Earll, senior director of public policy at Focus Action, said a better strategy is to chip away at Roe v. Wade, as happened in April 2007 when the U.S. Supreme Court upheld the nationwide ban on partial-birth abortion that became federal law in 2003.

“The incremental process has been effective,” Earll said. “The Supreme Court is open to it.”

In-State Contributions Drive Both Campaigns

Both coalitions have a major in-state contributor keeping the campaigns in the black.

For Colorado for Equal Rights, the donor is Mickey O’Hare of Ignacio, a town of 700 in southwest Colorado. Either privately or through his local refinery business, Maralex Resources, O’Hare has given $104,000 of the $230, 500 contributed to support 48 since Nov. 2007.Other significant in-state contributors are Coast IRB, LLC in Colorado Springs ($19,400) and Greeley resident Dennis Hoshiko ($20,000).

Only a few donations have come from other states, the largest from Cincinnati Right to Life, which has given $8,000.

Of the $803, 400 raised since January by the NO on 48 group, $460,000 has come from Planned Parenthood of the Rocky Mountains. The largest out-of-state contributor is Planned Parenthood Arizona, Inc., at $100,000.

Protect Families, Protect Choices also has a larger and more seasoned volunteer staff and is media savvy: Earlier this month, it rolled out slick NO on 48 radio and TV ads in major Colorado markets.

Public opinion may also be against 48. A summer poll by Rasmussen Reports found that 52 percent of Coloradans oppose it, 35 percent support it, and the rest are undecided.

Though it may appear that 48’s detractors have the edge, experts say the vote will be close.

Cal Zastrow, a Michigan resident who came to Colorado to coordinate Amendment 48’s campaign, has no doubt about the Nov. 4 ballot outcome.

“The pro-life tide is rising in Colorado,” he said.