Be it Enacted by the People of the State of Colorado:
SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read:
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.
This is certainly an emotion-laden issue. Obviously, I've never been pregnant. On the other hand, I've been listening for years to many pregnant women, including the mother of my children, in good time and in bad. Almost all have spoken of or acknowledged the sense that the fetus is “a baby,” virtually from the moment the woman knows she is pregnant. Both of my sons were “real” to me, if not in the same sense, from the moment I knew about them. That’s when the planning, the dreams, begin, along with a lot of hope and fear.
That doesn’t mean there aren’t sometimes hard choices to be made. We make quite a number of distinctions of the different sets of rights for persons in different circumstances: children vs. adults, or felons vs. the innocent, or, lately, enemy combatants vs. prisoners of war. We make distinctions of rights that amount do differentiating degrees of personhood. The devil is in the details.
Supporters of the movement want to understate that. According to their site,
Many amendments are worded confusingly, and already there are people who would have you believe this is an overly complicated issue, but the simplicity of the text of this initiative speaks for itself. It is not complicated, it is not confusing, it simply states what should be obvious to everyone…
But, as any Biblical scholar can attest, simple language is no guarantee of a simple issue. Looking only at medical concerns, let’s consider some of the different circumstances this might affect.
- Up to 50% of fertilized ova fail to implant in the uterine wall. If these fertilized ova have rights, who is accountable for them?
- In the instance of ectopic pregnancy, to what extent do we go to protect any rights of the fertilized ovum? The natural outcome for ectopic pregnancy is death for the fertilized ovum, and commonly for the mother as well.
- To what extent is a pregnant mother responsible for her self-care in pregnancy as an expression of her accountability for the rights of the developing fetus? There have been efforts to prosecute women for use of illegal drugs for the potential damage done to the fetus. How far should we take such a thought? For example, is the woman responsible for a cigarette or a glass of wine? In law in many such instances each time a persons partakes is a separate violation. To what extent is a woman responsible for actions taken before she knew she was pregnant? And to what lengths are we prepared to go to seek such information? (We might recall here that the right to choose [including choosing to end the pregnancy] is based primarily on an implied right to privacy in medical decision making.)
- If a woman has a form of cancer sensitive to hormonal changes, such as ovarian, uterine, and some breast cancers, and is also pregnant, she may well be advised to terminate pregnancy, based on the risks to her of delaying treatment, and the risks to the fetus of accepting treatment. Would this constitutional change in Colorado change that discussion? Whose rights would be prioritized? Whose decision would be compelling? That such cases are uncommon is not to say they are unknown.
- How would this affect regulations regarding surrogate pregnancy, or the relative rights of genetic parents (father vs. mother), or their rights vs. adoptive parents? Who is accountable in protecting the rights attributed to this “person?”
- How would this affect regulations regarding infertility treatment, and especially storage and/or disposal of stored embryos? What are the rights of each of those embryos, and how do they weigh against the rights of the genetic parents? Indeed, we have had cases regarding the “parental” (ownership) rights of each genetic parent when one was prepared to dispose and the other wished to continue storing the embryos. And, if an embryo that has been stored is tried and fails to implant, who is accountable for “losses” attributable to that embryo?
Those are just a few of the circumstances that might be involved, even without addressing directly the right of a woman to make her own choices about her health care, including the right to terminate a pregnancy, in accord with her individual values.
Which is, of course, what the group supporting the initiative really wants. They want to end abortions in Colorado, and they believe that this amendment would provide a foundation for laws that would accomplish that objective. It’s not uncommon for the state to step in to protect the rights of persons when in the eyes of the state appropriate surrogates do not have at heart the best interests of the children. This is the basis of laws protecting both children and seniors from abuse. This group would simply push this principle to its logical extreme: if, as Dr. Seuss said, “a person’s a person, no matter how small,” designating personhood from fertilization can give the state a compelling interest (and “compelling” might be the operative word) in protecting rights attributed to a fertilized ovum.
It seems so simple indeed – until we have to figure out how to live with it. And then it’s not so simple at all.