Amendment 48 seeks to define a fertilized egg as a person with full legal rights in Colorado’s constitution. If fully implemented, it would profoundly and adversely impact the lives of sexually-active couples, couples seeking children, pregnant women, doctors, and medical researchers, subjecting them to severe legal restrictions, police controls, protracted court battles, and criminal punishments.
Amendment 48 would outlaw abortion, even in cases of rape, incest, terminally deformed fetuses, and danger to the woman’s health. The measure might or might not allow abortions in cases of extreme risk to the woman’s life; either way, it would endanger the lives and health of many women. In conjunction with existing statutes, Amendment 48 would subject women and their doctors to first-degree murder charges for willfully terminating a pregnancy, with the required punishment of life in prison or the death penalty.
The impact of Amendment 48 would extend far beyond abortion into the personal corners of every couple’s reproductive life. It would outlaw many forms of birth control, likely including the pill. It would require criminal investigation of any miscarriages deemed suspicious. The measure also would ban potentially life-saving stem-cell research and many popular fertility treatments.
Amendment 48 rests on the absurdity that a fertilized egg is a full human person with an absolute right to biological life-support from a woman–regardless of her choices and whatever the cost to her. The biological facts support a different view, namely that personhood and rights begin at birth. Colorado law should reflect those objective biological facts, not the Bible verses so often quoted by advocates of Amendment 48.
Legal Impacts of Amendment 48
Amendment 48 would alter Colorado’s constitution, granting a fertilized egg the same legal status as a born human baby. It would add a new section to Colorado’s Bill of Rights stating:
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.”
Those other sections state:
Section 3. Inalienable rights.
All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.
Section 6. Equality of justice.
Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.
Section 25. Due process of law.
No person shall be deprived of life, liberty or property, without due process of law.
The state legislature likely would draw up new statutes implementing Amendment 48, and state courts would determine its effect on present and future legislation. The more consistently Amendment 48 were enforced and interpreted by the courts, the more ghastly its implications would be.
For example, Statute 18-3-102 states, “A person commits the crime of murder in the first degree if…[a]fter deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person or of another person…Murder in the first degree is a class 1 felony.” Thus, if a fertilized egg is legally a person, then any intentional act of preventing a fertilized egg from implanting (such as by taking the “morning after” pill) or aborting an embryo or fetus would be first-degree murder. By Colorado law, the punishment for that crime would be life in prison or death. Statute 18-1.4-102 states, “Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment…” While few supporters of Amendment 48 would likely endorse such draconian punishments, the wording of the amendment leaves no room for doubt: any woman who deliberately prevents a fertilized egg from implanting or who terminates her pregnancy would be guilty of murder under Colorado law. In fact, at least one Colorado religious leader has explicitly called for the death penalty for abortion.1
Given these implications for criminal law, police officers and prosecutors might be obliged (or inspired) to investigate and prosecute any miscarriage deemed suspicious. A woman suspected of inducing a miscarriage (or attempting to do so) could be subject to criminal prosecution, as could others suspected of helping her in the act. Doctors might be required to report any evidence that a patient attempted to terminate a pregnancy under child abuse reporting laws.
However, the implementation of Amendment 48 also would depend on federal restrictions on state law. The Fourteenth Amendment prevents states from enacting laws that violate federally-recognized rights:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In legalizing abortion, the 1973 Supreme Court decision Roe v. Wade invoked the Fourteenth Amendment. So long as that ruling stands, Colorado could not ban abortion under Amendment 48. However, overturning Roe v. Wade and outlawing abortion is precisely what the advocates of Amendment 48 aim to do.
A document from the “Personhood ‘08 Colorado” campaign from Colorado for Equal Rights states, “Why redefine the term person? In the famous Roe v Wade Supreme Court case Justice Blackmun said basically that the whole argument for abortion rights falls apart if we know that the pre-born is a person.”2 Similarly, LifeSiteNews.com reports that Kristi Burton, the sponsor of Amendment 48, believes that “the time is ripe for a legal challenge to Roe v. Wade, especially at a point in history when the next appointment to the Supreme Court may come from a pro-abortion Democratic president.”3 At their 2008 state convention, Colorado Republicans passed a resolution calling for the overturn of Roe v. Wade.4 In its 2008 Candidate Questionnaire, Colorado Right to Life states, “Colorado RTL opposes every law that regulates the killing of unborn children because, regardless of the intention, such laws…will keep abortion legal if Roe v. Wade is merely overturned…”5 A World Net Daily article reports, “Pro-life activists in Colorado have cleared a major hurdle in preparing an initiative for the 2008 election that would grant personhood to the unborn and create a possible confrontation to the 1973 Roe vs. Wade ruling that created abortion rights.”6
So the passage of Amendment 48 in Colorado would not immediately ban abortions due to overriding federal law. However, its advocates explicitly hope to use the measure to overturn Roe v. Wade. If successful, they could fully implement Amendment 48, thereby outlawing abortion (and more) in Colorado.
The legislature and courts in Colorado might be strongly tempted to pretend that Amendment 48 doesn’t mean what it plainly says in order to avoid its absurd implications. Such a course of legislative and judicial winking might save Colorado from the worst effects of the measure, but it would do so by undermining the basic principle of rule of law so essential to a free society.
Alternately, the Colorado legislature could try to rewrite the myriad statutes mentioning “person” or “persons” to exclude fertilized eggs, embryos, and fetuses. However, anti-abortion lawyers could effectively challenge such legislative changes based on the constitutional language of Amendment 48. The measure would be subject to interpretation by Colorado courts, but those courts would be legally bound by the constitution, including Amendment 48.
If Amendment 48 passes, its exact effects would depend greatly on the decisions of future legislators and judges. However, we can be sure that the advocates of Amendment 48 will work doggedly to force the Colorado government to fully implement and enforce the measure.
Originally published by the Coalition for Secular Government. The Coalition advocates government solely based on secular principles of individual rights. The protection of a person’s basic rights to life, liberty, property, and the pursuit of happiness — including freedom of religion and conscience — requires a strict separation of church and state.
Amendment 48 Is Anti-Life