Eight months pregnant, confused and suffering psychological disorders, Jessica Clyburn jumped from a fifth story window in South Carolina. According to the media, she had attempted unsuccessfully to commit suicide. According to the local district attorney’s office, she committed murder.
“Clyburn survived but suffered a stillbirth as a result of the fall. She was arrested on homicide charges and is still being held without bail,” attorney Lynn M. Paltrow, founder and executive director of National Advocates for Pregnant Women told The Colorado Independent.
If the Colorado Personhood Initiative were to pass next year, Paltrow said the state will see a host of new criminal offenders like Clyburn and a growing docket of personhood crimes. Coloradans should brace themselves, she said, for “Carolinafication.”
Sponsored by pro-life activist organization Personhood USA as part of a national campaign, ballot initiative 25 would amend the state constitution in more than 20,000 places, granting even the cells of a fertilized egg full legal rights while working to effectively limit the rights of pregnant women. Legal experts say the law would lead to outlandish and oppressive applications.
“Constitutional jurisprudence is all about weighing interests,” former Planned Parenthood attorney Kevin C. Paul of Heizer Paul LLP told The Colorado Independent. “If you’re creating a new interest, one that hadn’t existed previously, then that interest is going to have to be weighed against [those of] anybody else. And if you take the position that an unborn fetus is to be legally treated just the same as a woman, then those two interests clash.”
Should the personhood initiative pass, he said, it’s clear women could be held by the state to ensure the safety of a fetus.
Mark Silverstein, legal director in Colorado of the American Civil Liberties Union, said the law would apply to women unaware they’re pregnant.
“Let’s say a woman is sexually active and she has a drink. If a drink is determined to harm a potential human life, well wouldn’t it be considered reckless endangerment to have that drink — or to engage in some other type of activity that would pose a risk to a fetus?”
Erik Maulbetsch, also with the ACLU in Colorado, wrote in an email that although the way fetal abuse and women’s rights issues interact are certainly a concern, in his eyes, the immediate threat of “outlawing hormonal birth control, in vitro fertilization and stem cell research, are the most dangerous and intrusive aspects of the proposal.”
Deal with ramifications later
The legal questions surrounding the initiative at this point are not a priority to Personhood USA, which lawyers like Paul see as a problem.
“It’s just a bad idea to try to amend the basis of all other law when the answer to the question ‘What will happen when I do this?’ is simply ‘I really don’t know.’ It is very hard to predict the difficult and even absurd results.
“The term ‘person’ has been legally defined,” he added, “but ‘the beginning of biological development’ has no definition yet.” Paul said the change in language would affect “our fundamental due process rights, the provision to inalienable rights, access to our courts and a right to justice.”
Presented with some of the hypothetical legal and rights issues related to the initiative, Keith Mason, co-founder of Personhood USA and one of the proponents of Initiative 25, said he didn’t want to speculate on the particulars of the bill.
That wasn’t good enough for Abe Saur, associate editor at lefty grab-bag politics and criticism site The Awl. He asked Mason whether clinically obese pregnant woman, who have a 30-percent higher risk than non-obese women of giving birth to children with heart disease, could be convicted of abuse or murder.
Will we be criminalizing the pregnant obese? Saur asked.
“I can’t answer that because it’s a hypothetical,” said Mason. “It’s like asking what would happen if a Martian came down and impregnated a woman on Earth. Let’s talk about real issues.”
Mason said he would “worry about the [legal] details later,” after the bill had passed.
Losing one’s personhood
“We know, based on hundreds of cases across the country, some of them in Colorado, that if, as a matter of law fetuses are described as separate persons, essentially pregnant women lose their Personhood,” Paltrow said.
The ACLU’s Silverstein said that although it would take numerous court cases to determine specifically how personhood would affect Colorado law, the effect of providing an unborn child personhood rights would unquestionably restrict the civil rights of women.
But Personhood Colorado director and the initiative proponent Gualberto Garcia Jones said the law is designed not to infringe rights but to extend them. Initiative 25 is slightly updated to be more inclusive than last year’s Initiative 48. We’ve changed “the initial marker for the beginning of life from fertilization to the beginning of the biological development of a human being,” he said.
“It’s intended to account for human beings who may be created through asexual reproduction in laboratories and used as raw material for research, organs, or stem cells. Fertilization would not have properly applied to asexually reproduced humans, but even asexually reproduced human beings have a definite biological beginning.”
It’s not that simple, said Silverstein. Presently, Colorado Code defines homicide, for example, as “the killing of a person by another.” The code also says that a person is someone who has been born and is alive at the time of the homicidal act. “If personhood applies to the criminal code, then you have homicide involving persons who have not even been born — to persons who might be a single cell,” Silverstein said.
Paltrow said that all it would take is one child welfare worker, one doctor, one individual to decide that a woman is endangering the life of her unborn child and she could be arrested and taken away.
“Colorado like every state has a civil commitment law. Civil commitment is a process established under mental health laws to confine individuals believed to pose a danger to themselves or others. If the [personhood] measure succeeds and the unborn are defined as having full constitutional rights, the state could commit a pregnant woman from the moment of fertilization if she is perceived to pose a danger to the fertilized egg.”
The South Carolina Courts in 1997 ruled that fetuses that can survive outside the womb are persons under child abuse rules. As a result, 90 women have been arrested there, including Clyburn.
Another is South Carolinan, Regina McKnight, who smoked crack cocaine in 1999 while she was pregnant. Her unborn baby died in the eighth month. Twenty-four-year-old McKnight, who had three other young children at the time and was pregnant again, was convicted of murder and sentenced to a 12-year prison term.
“Once a personhood measure passed there would be no limit” to the controls the state could place on a suspect pregnant woman, said Paltrow. “Civil commitment laws could be used to keep a woman from, say, working in certain jobs, taking a wide range of medications, or even leaving town so she could have a vaginal birth after a c-section,” which can be seen as endangering the fetus.
These cases aren’t theoretical.
Paltrow described the experience of Angela Carter, who was undergoing treatment for severe cancer. Carter was forced by doctors concerned with the health of the fetus to have a cesarean section. Both Carter and the fetus died. The C-section was listed as one of the causes for the mother’s death . Although the courts found that the hospital acted outside of its legal rights at the time, Paltrow said the personhood amendment would make such actions common place.
“Once you have defined a fetus as a separate person from the mother, the state has the power to literally take custody of a pregnant woman from the moment she conceives.”
Jonathan Van Blerkom, a University of Colorado at Boulder professor of molecular, cellular and developmental biology, agreed that zygotes in fertility clinics would be protected. He said not only researchers involved in embryonic stem cell research but also individuals looking to participate in in-vitro fertilization programs would be affected.
“We are talking about embryos in the one cell stage … What happens when a liquid nitrogen tank, which keeps embryos frozen in storage, is damaged? It happened during an earthquake in California. Concrete fell on a tank and all of the embryos were destroyed. Is there criminal liability there?”
Like others, Silverstein sees the personhood drive as misguided and a sweeping end run around the legal right to abortion. The proposed initiative simply has not been thought through, he said.
“If a woman has a beer while she is pregnant is she furnishing alcohol to a minor?”