Origins of Personhood: Using ‘States Rights’ to Restrict Abortion

The first in a series of reports exploring the ramifications of this controversial state ballot measure.

Hard-line, socially conservative activists are gearing up to enact state laws to restrict abortion since President Bush and Congress have all but abandoned the federal cause. To that end, Colorado is once again serving as a political incubator in yet another attempt to chip away at Roe v. Wade.

But for all the hue and cry, do efforts at the state level have a chance of success and what cost do they exact from the larger conservative movement in a watershed election year?

“States rights” has been the battle cry of modern-day social conservatives over the last 50 years to oppose everything from racial desegregation and gay marriage to gun control.

But no issue has raised culture warrior hackles more than abortion.

Less well-known than the landmark 1973 Roe v. Wade decision, the Supreme Court’s 1989 ruling on Webster v. Reproductive Health Services set the stage for a series of state skirmishes on restricting abortion and influencing public opinion through constitutional amendments, efforts that continue to this day.

Webster is a Missouri state law that restricts the use of state funding, employees and facilities to provide abortions.

However, the real test lies in the language. The law added a strict Christian construct to the preamble of the Missouri constitution — that life begins at conception and therefore unborn children have protectable rights.

Now 20 years after Webster became law, a similar initiative is being attempted in Colorado through a proposed ballot measure to amend the state constitution:

Be it Enacted by the People of the State of Colorado:

SECTION 1.  Article II of the constitution of the state of Colorado is

Section 31.  Person defined.  As used in sections 3, 6, and 25 of Article II of the state constitution, the terms “person” or “persons”
shall include any human being from the moment of fertilization.

According to the Guttmacher Institute, only Missouri has successfully added religiously inspired conception language to its constitution in an attempt to negatively sway public opinion on abortion. Despite decades of trying, no other state has succeeded with this controversial approach. Alabama, Georgia, Maryland, Oregon, Tennessee and South Carolina attempted either legislatively or via citizen initiative to codify personhood for fertilized eggs but every effort was soundly defeated, reports Dionne Scott of the Center for Reproductive Rights.

To Anita Allen, a University of Pennsylvania professor in both law and philosophy, states run into trouble with these efforts when they attempt to apply the conception language.

“The Court has emphasized that Roe v. Wade implies no limitation on the authority of a state to make a value judgment favoring childbirth over abortion,” says Allen. “The preamble can be read simply to express a value judgment. A state is free through a referendum, preamble or law to state that life begins at conception but they don’t have the constitutional right to regulate abortion or any other practice.”

Supporters of Colorado’s proposed ballot measure argue on the Colorado for Equal Rights Web site that “the simplicity of the text of this initiative speaks for itself.”

However, Allen, an expert on privacy laws and ethics, isn’t convinced that the measure is not simply a ploy to avoid the much more difficult persuasion campaign against birth control, emergency contraception, in-vitro fertilization and, ultimately, abortion itself. That debate has largely been long lost in the court of public opinion. A November 2006 Ciruli Associates poll reported that 56 percent of Colorado voters are pro-choice, a figure on par with the rest of the nation.

Thus, it would appear Roe v. Wade isn’t going anywhere soon.

“It’s a strategy,” says Allen, of the proposed amendment. “And certainly a moralist could say, ‘I really want to believe that from the moment of conception life begins and that that life deserves some legal protection.’

“But there are huge numbers of fertilized eggs that don’t ever implant and implanted eggs that spontaneously abort. Plus, it raises the whole question about eggs that are fertilized outside the human body.”

It’s those not-so-simple questions that has some longtime anti-abortion activist groups lending less-than-tepid support.

The Colorado Catholic Conference refuted statements by Colorado for Equal Rights that the state’s three bishops endorsed the proposal, according to a February press account. Further, Jennifer Kraska, executive director of the conference, raised concerns about the ballot group’s structure, finances and tactics in she wholly dismissed any possibility of support by the Catholic Church.

Also notably absent is Focus on the Family, the Colorado Springs-based multi-million dollar ministry and catalyst for much of the evangelical culture wars over the last three decades.

The prime backers of the ballot measure, namely American Right to Life Action, have a long and ugly history of calling out its putative allies. One spat last year resulted in National Right to Life yanking the charter of the state affiliate for attacking Rev. James Dobson in newspaper ads for not being anti-abortion enough. From the ashes of Colorado Right to Life rose the hard core American Right to Life Action, which is heavily engaged in petition-circulating efforts for the group Colorado for Equal Rights.

The splintering of what one would assume are allied groups over this ballot measure comes as no surprise to Clemson political science professor Laura Olson, an expert on religion and politics.

“Colorado is a real locus of religious right activism,” states Olson. “There’s lot of folks who are conservative evangelicals — you would think that this is a core issue. If this initiative is having trouble getting support, I think it’s a real commentary on how evangelicals are a lot more politically diverse than they’re given credit for being. This is not the kind of tactic that a lot of people are going to sign on to, quite literally.”

And that dissension among the ranks of conservative evangelical Christian and Catholic leadership leads to a whole host of questions — namely, what if this thing does pass, then what?

Olson believes that the end point — a total restriction on abortion — isn’t the real goal no matter how clever the political strategy may be to push for zygote civil rights.

“One of the things about the abortion issue more than any of the other culture wars issues that’s been so interesting is that both sides get so fired up,” she says. “But I don’t think either side wants things to change in any real perceptible way. It’s a mobilizing tool.”

And high-intensity fundraising and voter turnout is what fertilized-egg activists will be doing leading up to the November election.

But beyond the boots-on-the-ground tactics, Olson raises an interesting analogy in the national 2004 push to pass state Defense of Marriage Acts (DOMA) as a strategy to for getting re-election support for President Bush from anti-gay marriage, religiously motivated voters.” It was the perfect get-out-the-vote strategy for conservative candidates/causes up and down the ticket by pairing an important federal race with a red-meat state ballot measure for the GOP faithful to gnaw on.

So in the context of the “fertilized egg as a person” amendment, if the Colorado Secretary of State approves the measure for the ballot this year, will those highly motivated “values voters” sit out the presidential election or will they if not enthusiastically, at least consistently, pull the lever for the GOP’s presumptive nominee, Sen. John McCain, a candidate who has had a great deal of difficulty making inroads with the conservative religious right?

Which seemingly puts the spotlight squarely on Colorado this cycle — a traditional political swing state with a boisterous evangelical activist movement countered by an equally raucous libertarianesque civil liberties streak. Couple those forces with what is likely to be a very close 2008 presidential election, in addition to several other highly partisan state races and ballot measures, that will have the hard-core politicos salivating in the voting booth.

Read Colorado Confidential’s continuing coverage on this controversial ballot measure.

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