Colorado Personhood Version 4.0

By Jonathan F. Will
[Cross-posted at Hamilton and Griffin on Rights.]

This November citizens of Colorado will have an opportunity to vote on a proposed amendment (Amendment 67) to their state constitution that would define the words “person” and “child” in the Colorado Criminal Code and Colorado Wrongful Death Act to include “unborn human beings.”  Similar personhood measures were rejected by a margin of 3-to-1 by Colorado citizens in 2008 and 2010, and a proposal in 2012 failed to receive the requisite signatures to get on the ballot.  Is this version 4.0 all that different?

A New Strategy

In short, the language is different, but not in ways that ought to matter for those concerned about the implications for reproductive rights.  I was initially surprised that a fourth personhood proposal was able to secure enough signatures to get on the ballot when the third measure was not.  After speaking with a reporter from Colorado, it became clear that the strategy this time around was very different.

This most recent personhood effort rode the wave of momentum generated by the 2012 story of a Colorado woman, hit by a drunk driver, who lost her pregnancy in the eighth month of gestation (a boy she had named Brady).  At that time, Colorado did not have a law on the books that permitted the drunk driver to be prosecuted for the death of the fetus.  Amendment 67, advertised as “The Brady Amendment” was offered as a solution, and there was no trouble generating over 100,000 signatures.  Even without Amendment 67, Colorado has since passed a Crimes Against Pregnant Women Act, which criminalizes (with varying degrees of punishment) the termination of a woman’s pregnancy without her consent.  This new law does not define the fetus as a person, expressly permits women to choose to have abortions, and certainly is not considered to go far enough for those in favor of sweeping personhood measures.  Amendment 67 was thus still viewed to be necessary by some.

The Same Old Ambiguity

Each time a measure has been proposed purporting to offer legal protection to a new class of unborn persons, opponents highlight concerns not just about the implications for abortion, but also regarding certain forms of contraception, reproductive technologies like IVF, and even the risk of investigation of women who experience miscarriages.  Although passage of Amendment 67 may not lead to the realization of any of these fears, the language of the amendment certainly does nothing to dispel them.

Prior personhood efforts in Colorado (and elsewhere) attempted to define the term “person” as used in the state constitution itself.  As Glenn Cohen and I wrote a few years ago, this approach created ambiguity as to what immediate impact, if any, such an amendment would have once approved by voters.  Amendment 67 avoids this by explicitly targeting the Colorado Criminal Code and Wrongful Death Statutes.  In other words, it would not seem necessary for any additional enabling legislation to be enacted to set these changes in motion.  If anything, that increases concerns that an eager state prosecutor might ignore federal precedent and immediately take action against an abortion provider, or otherwise create issues at fertility clinics or pharmacies dispensing the morning after pill.  Of course, it is equally plausible that prosecutors would do nothing differently following passage of the amendment.

Finally, it continues to be troubling that personhood proponents are unwilling to clearly define when exactly they intend for the rights associated with legal personhood to attach to the unborn.  Indeed, Amendment 67 is a step backward in this regard, for it does not even attempt to define “unborn human being.”  In prior efforts “person” was defined in terms of “fertilization,” or “human being at the earliest stages of biological development.”  The Federal Sanctity of Human Life Act identified “single-celled zygotes” as the relevant marker.

This timing makes all the difference.  The earlier we say that personhood rights attach, the more services are potentially implicated.  Tying legal personhood to pregnancy (generally thought to commence after successful implantation fourteen days after the sperm penetrates the egg) would obviously implicate abortion, including the abortion pill (RU-486), as well as miscarriages, but it would exclude most forms of hormonal contraception, IUDs, and IVF services.  If legal personhood attaches to single-celled zygotes (within the first 24 hours after the sperm enters the egg), these latter items would obviously then be implicated.

In the end, Amendment 67 is dressed in slightly different clothes, but it is a personhood measure all the same.