By Ashley Surdin
Washington Post Staff Writer
Sunday, July 13, 2008
LOS ANGELES -- A proposal to define a fertilized human egg as a person will land on Colorado's ballot this November, marking the first time that the question of when life begins will go before voters anywhere in the nation.
The Human Life Amendment, also known as the personhood amendment, says the words "person" or "persons" in the state constitution should "include any human being from the moment of fertilization." If voters agreed, legal experts say, it would give fertilized eggs the same legal rights and protections to which people are entitled.
The ballot initiative is funded by Colorado for Equal Rights, a grass-roots antiabortion organization. Its purpose, initiative sponsor Kristi Burton said, is to lay a legal and legislative basis for protecting the unborn. Its passage would also open the door to modifying other laws for the same purpose, she said.
As to what laws could then be modified, Burton would not elaborate. "We try not to focus on some of the issues that will be taken care of later on," she said, repeatedly saying that the amendment is not aimed at outlawing abortion.
But that is the objective, according to one of the measure's biggest supporters, Colorado Right to Life. "The goal is to restore legal protection to preborn babies from the moment they are conceived, which is the only way we're going to stop abortion," said Leslie Hanks, vice president of the group.
Critics say the aim is not just to outlaw abortion in Colorado but ultimately to overturn Roe v. Wade by igniting a court battle that would bring the issue to the U.S. Supreme Court, where, proponents of the measure hope, a conservative majority would strike down the 1973 decision that legalized abortion nationwide.
And the amendment carries broader implications, critics say, such as limiting medical research involving embryos, inviting intrusive government oversight of pregnancies, and banning certain contraception, including the morning-after pill and the intrauterine device, or IUD.
"If we give fertilized eggs legal rights, abortion could be considered murder and a woman could be sent to jail for making the difficult life decision to terminate a pregnancy," said Crystal Clinkenbeard, spokeswoman for Protect Families, Protect Choice, a coalition of medical professionals, community groups and religious leaders who oppose the amendment.
The measure also could expand the reach of the law into other arenas, legal experts say. For instance, if a woman miscarries, she could be held responsible if it were found she caused it, even unintentionally. If she smoked or drank while pregnant, her behavior might be considered negligence. Damaged eggs might be eligible for monetary damages. The use of fertilized eggs at fertility clinics or in medical research labs would come into question because the disposal of unused eggs could be considered homicide.
"Because this amendment would define a person in a given way and expand the universe of who persons are, it expands the reach of laws that deal with persons," said Bill Araiza, a law professor at Loyola University in Los Angeles.
The amendment also calls into question pregnant women's medical access, said Scott Moss, a professor at the University of Colorado Law School. "If a pregnant woman is really two people with exactly equal rights, then it is not clear the pregnant woman can undergo any medical treatment that jeopardizes a fertilized egg," he said, adding that the amendment would generate a flood of litigation.
Colorado is the first state to succeed in putting this particular question to voters, but several others have tried to recognize fertilized eggs as persons through ballot initiatives or legislation.
"Even though the success wasn't immediate, this battle isn't over," said Robert Muise, a lawyer with the Michigan-based Thomas More Law Center, a Christian public interest firm that has drafted language for efforts in Oregon, Montana and Georgia. "This is just the first round."
Colorado's initiative has proved divisive among abortion opponents. Hanks, from Colorado Right to Life, said a memo had been circulating among legislators and antiabortion leaders arguing that the timing and language of the measure are not right.
Groups such as National Right to Life, which separated itself from its Colorado counterpart over a separate issue, and Focus on the Family have not supported the initiative either, Hanks said. "They surely haven't helped us," she said. "We've gone this alone in Colorado."
Carrie Gordon Earll, senior director of issues analysis at Focus on the Family, said the organization supports efforts to ban abortion, but not the Colorado strategy. "In our view, you don't have to have a personhood amendment before the court to overturn Roe v. Wade. You just need the right court. So we are more interested in the makeup of the court than what particular challenge comes before the court," she said.
The Colorado Supreme Court ruled that the measure could go before voters in November, but it is unclear whether support will be found at the polls.