DENVER – Personhood Amendment backer and Republican gubernatorial candidate Dan Maes recently said he doesn’t think Amendment 62 will have much effect if passed by voters in November – in particular he said he doesn’t feel it will outlaw abortion.
But ersonhood Colorado Director Gualberto Garcia Jones says that while detractors are exaggerating the consequences, very real changes to Colorado’s reproductive health landscape will occur if it passes, including eliminating abortion, ending stem cell research and greatly changing the method by which in vitro fertilization is conducted.
Opponents of the amendment agree with Jones on the potential effects but say their claims are no exaggeration and that politicians should be held accountable for policies that would stem from an amendment overwhelmingly rejected by Colorado voters in 2008 for being too extreme.
Amendment 62 on the November ballot applies the term “person” as currently used in “provisions of the Colorado Constitution relating to inalienable rights, equality of justice and due process of law to every human being from the beginning of the biological development of that human being.”
Opponents say 62 will change 20,000 Colorado statutes and prohibit abortion in all cases regardless of health of the mother, rape or incest, as well as shut down key scientific industries in the state. Opponents also contend women would lose many forms of birth control and potentially become liable for complications that occur during pregnancy.
Jones, a constitutional lawyer, agrees with opponents about the possible effects of Amendment 62 as far as his goals of ending abortion, stem cell research and curtailing aspects of in vitro fertilization are concerned. He also said women would be prosecuted in Colorado the way they are now in some states for acting with reckless disregard for their unborn child. However, he said many of the claims made by opponents such as Planned Parenthood are simply “scare tactics.”
Dr. Eric Surrey, a nationally renowned woman’s doctor and endocrinologist in Colorado, says he’s not using scare tactics when he points out that the way pregnant women are treated as patients would change in a way that could be harmful to their health.
“This is a critical issue. Anyone who now takes care of a woman [if the amendment were to pass] would have a very different equation. Let’s say that if a woman has a tubal pregnancy; sometimes there is even a heartbeat. That pregnancy can rupture and the woman can die,” Surrey said. “Well, if I go in and remove the tubal pregnancy to save the woman’s life, have I committed a crime because I am practicing normal medical care?”
Jones says that’s one of the scare tactics. As long as a doctor did what they could to save the life of the child while working to save the life of the mother, he says, then there would be no liability attached to them for the death of the child under Amendment 62.
“The way the law works is based on precedent. If we go back to pre-Roe versus Wade and we go back to a time when the child was considered a child in the womb with basic rights, we can see that there wasn’t a single case where the doctor has been charged. I have challenged many people to find a case where a doctor was charged before abortion was legal with manslaughter, or any type of negligence, for treating a woman with an illness during pregnancy.”
According to other constitutional lawyers in the state, including Kevin Paul, a long-time personhood opponent and regular attorney for Planned Parenthood, it’s not clear at all what would occur if the law were to pass, but that single-celled organisms would have all the rights and responsibilities of a person.
“Constitutional jurisprudence is all about weighing interests,” Paul 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.”
He and other experts have said that the courts would settle the matter but that it’s likely doctors and women would find themselves facing consequences if human development is stopped at any point.
Jones says the idea women would be held liable by the state due to pregnancy, prosecuted for accidental abuse of a child or be investigated because of a miscarriage is fiction.
Mark Silverstein, legal director of the Colorado ACLU, however, says it’s a very real possibility, adding that women could find themselves prosecuted for reckless endangerment just for having an alcoholic beverage while unknowingly pregnant. Jones disagrees.
Jones says a woman would need to have made both a conscious decision to hurt the child and then carried that action out to be culpable, but further adds that in cases where a woman was brought before a jury he thought it very unlikely she would be convicted. “Do you really think a jury of 12 people in Colorado is going to convict a woman for having a miscarriage? That one really is kind of out there.”
Surrey questions that stance: “The response that we will let the courts decide, is that appropriate?”
Surrey says that giving personhood to something that 70 percent of the time would not develop into a human being due to abnormalities in chromosomal make-up seems inappropriate and creates a host of legal issues that would jam the courts and Colorado money and potentially the lives of women.
“It is not as if you are putting a person at risk,” Surrey said. “There are embryos that will never become a child and have no potential. Should we give legal rights to an embryo that is missing chromosomes 22, 18, and 16 and just has no potential beyond developing to a 20-cell stage?”
Jones says that while he thinks the legislature would ultimately be asked to define the laws, there are times when a woman deserves to be convicted, pointing to states where women can be charged with child abuse for engaging in activities that likely will harm their fetus, such as smoking crack. “If there was recklessness that rose to the level of intent, that was something that should and would be tried,” Jones said.
Paul says that while he sees lawsuits bringing about the majority of legal changes in the state, he also thinks it’s true that the legislature would be responsible for creating laws surrounding the amendment. Lawmakers would be compelled to protect a new interest that was created, he says, adding he could easily see women being held against their will to protect the life of newly created legal entity.
Lynn M. Paltrow, J.D., founder and executive director of National Advocates for Pregnant Women, says she adamantly disagrees that a woman’s rights wouldn’t be curtailed, noting instances where women have been withheld medical care or were detained while they gave birth to a child.
She recalls a case in South Carolina where a pregnant girl reportedly tried to commit suicide by throwing herself from a window. As a result, a miscarriage occurred and the girl was arrested on murder charges.
Impacts to in vitro fertilization
Jones says he is not against in vitro fertilization, however, he adds that Amendment 62 would likely greatly curtail its practicability and much of the science would be forced to change to make it legal in Colorado.
“It is definitely easier for purposes of liability to be dealing with something that has no rights,” Jones said. “It may actually make IVF a more expensive thing, a less practicable procedure, but we consider the practice of IVF as treating human beings like a commodity. That is what we want to see changed.”
Johnathan Van Blerkom, professor of molecular, cellular and developmental biology at the University of Colorado in Boulder, says it’s likely physicians practicing IVF would simply move to other states where laws do not present the possibility of prosecution.
Surrey says Amendment 62 would take fertility back to the early 80s before in vitro fertilization was practiced. He says that currently Colorado is a destination spot, but that that would all change if doctors were not able to practice the most up-to-date procedures.
“There is no way of knowing, but presumably [if Amendment 62 passes] I would face considerable liability, or the lab would for the embryos created in the lab, whether those were viable or not,” Surrey said.
Surrey argued that by definition in the language of the amendment abnormal embryos that stand no chance of survival would be protected under the law.
Jones explains that in his mind only those who knowingly harm an embryo would be targeted for criminal sanctions and when death occurs in the natural course doctors would have no culpability.
While neither the Colorado Department of Labor nor the Office of Economic Development and Foreign Trade could say what the economic impacts of the amendment would be on the state, Surrey says the clinic he is part of has more than 50 nurses and staff who would see considerable cuts as patient access to care is cut off. He adds that the same impacts would be felt at five similar clinics around the state.
Cecile Richards, president of Planned Parenthood Federation of America, says the Republican Party to a large extent is using the proponents of the initiative such as Jones to bring out a conservative voter base to the polls in a year with competitive Senate, House and gubernatorial races.
“In Personhood USA’s dreams this will somehow pass, but what I have seen of the initiative here in Colorado and other places over a decade is that it is being used more as a political tactic than anything else – as a distraction,” Richard said, noting the multi-state, multi-year strategy behind Personhood USA’s goals. She says the Personhood initiative was little different than other ballot initiatives that worked as wedge issues to bring out the base.
Jones disagrees with the assertion and said his group and those supporting it believed in bringing personhood to life with the amendment.
“The assertion that our work is driven in large part by Republicans to drive people to the polls – nothing could be further from the truth. What makes personhood different from other pro-life measures is that it is not driven by political affiliation, but by principle … If there is one thing people should know about the personhood movement, it is that we are fiercely principled, and therefore apolitical in nature.”
Scott McInnis, Jane Norton, Cory Gardner and Ken Buck are among Republican candidates supporting the controversial personhood amendment that would give the cornucopia of human rights afforded to Coloradans to zygotes (a one-celled organism that’s the first stage of human development). Last election, candidates Bob Schaffer and GOP party chair Dick Wadhams both opposed the initiative, along with fiscal conservative commentator Mike Rosen, ardent abortion opponent and radio host Dan Caplis and the Catholic Archdiocese.
“We have a dichotomy between religious and moral believes and nobody can argue with somebody’s personal beliefs,” Surrey said, “but thinking that, and scientific fact, are a very different story.”