“Egg As Person” Is Red Meat With Few Calories

The ballot initiative defining a fertilized egg as a person for purposes of certain provisions of the Colorado Constitution that the Colorado Supreme Court cleared to circulate petitions for on Tuesday will probably energize pro-choice activists and abortion foes in the 2008 election.  If it passes, however, it will be ruled mostly unconstitutional and will have only quirky impacts on Colorado law.On Tuesday the Colorado Supreme Court affirmed a ruling of the Title Board, which determined that a measure defining a fertilized egg as a person did not violate the single-subject requirement of the state constitution.  But the Colorado Supreme Court did not uphold the constitutionality of the measure.

If enacted the courts will consider the initiative, which never mentions the words abortion or contraception but is designed to ban both.  They will almost certainly find that the measure is unconstitutional and cannot ban either.

A state cannot ban abortion.  It can’t do it with a ballot initiative and it can’t do it with a state law.  This is the holding of Roe v. Wade, decided in 1973, and this holding has been reaffirmed by the U.S. Supreme Court in 1992 in Planned Parenthood v. Casey when the U.S. Supreme Court had moved considerably to the right politically of the Roe v. Wade court.  Constitutional law scholars sometimes describe Roe as a “super precedent”.

A state likewise can’t ban contraception.  The U.S. Constitution protected couples’ rights to use contraception before it protected the right to choose, through the 1965 case Griswold v. Connecticut (married couples).  Eisenstadt v. Baird extended the right to unmarried couples in 1972.  These cases remain good law as well.  The Lawrence v. Texas case in 2003, establishing that consensual sodomy between adult men may not be criminalized, is a direct descendant of the earlier contraception cases using the same reasoning.

What’s left?  This measure is a symbolic statement about abortion that will almost immediately be rendered a nullity, and various quirks may arise in unexpected places in Colorado law.

In real life, some of the more likely impacts may be to increase the stakes for doctors sued for medical malpractice in connection with a miscarriage or still birth, something that has happened based upon a measure adopted in Oklahoma.  The measure could also open the door to criminal liability for women who don’t obtain proper pre-natal care.  The measure could impact state funding for stem-cell research.  And, it might cause individuals who participate in a crime that gives rise to a miscarriage to face life in prison on felony murder charges.

The measure might also transform the immigration debate.  Currently, pregnant women can receive pre-natal care through Medicaid even if they are undocumented immigrants, through the grace of the state legislature.  This measure might give that administrative declaration a state constitutional dimension. 

All of this, of course, assumes that the measure will pass.  This is hardly a foregone conclusion.  A comparably strict abortion ban put to voters in conservative South Dakota in 2006 failed by a 44-56 margin.

In 1998, Colorado voters approved a parental notification of abortion statute, while rejecting a statute banning partial-birth abortion.  In 1988, Colorado voters rejected a measure banning the use of public funds for abortion, despite having passed a similar measure in 1984.  (A full list of Colorado’s voting history on initiatives can be found here.)  The overall trend of voters in Colorado has been to be nuanced, something the current “Egg as Person” measure is not.

So, while getting this measure on the ballot may be red meat for political conservatives, it may have a marginal and unpredictable policy impact, even if it does pass, and it may have a hard time winning voter support in the November 2008 election.

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Andrew Oh-Willeke

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