A Bad Night For Personhood

Fetal personhood ballot measures were defeated by solid margins yesterday in two states:

In Colorado, Amendment 67 — which sought to update the state’s criminal code to define fetuses as children — failed by a large 64 percent to 36 percent margin. It marks the third time that Colorado voters have rejected personhood. Meanwhile, in North Dakota, an effort to overhaul the state’s constitution to protect “the inalienable right to life of every human being at any stage of development” looked like it was poised to pass. Personhood proponents were hopeful that the conservative state would hand them their first major victory, galvanizing the push for similarly restrictive laws in other states. But Amendment 1 was defeated by similarly wide margins as the initiative in Colorado.

Noting that voters have turned down personhood in five separate ballot initiatives since 2008, Kliff reminds us that nobody is really sure what effects these laws would have:

Because no state has ever granted personhood rights to unborn fetuses, it’s really unclear how any specific amendment would work in practice. This was especially true with the North Dakota amendment, which didn’t give any particular rights to fetuses but instead required “the right to life of every human being at any stage” to be “recognized and protected.”

Supporters of both the Colorado and North Dakota initiatives argued that existing protections would still allow for legal abortion. Roe v. Wade, for example, protects legal, elective abortion during the first trimester of pregnancy. Choose Life North Dakota said that protection supersedes any state laws. But opponents argued that the amendment was written too broadly and that personhood laws would make abortion illegal. The director of North Dakota’s only in vitro fertilization clinic said that he would close his practice if Measure 1 passed. Embryos are sometimes discarded in treatment, and his lawyer warned that the practice could put workers at risk of legal action.

Even major pro-life advocates are wary of such laws:

Large pro-life groups like Americans United for Life and the National Right to Life Committee have not endorsed personhood ballot initiatives. Part of this is politics: some worried that the amendments (which opponents call draconian abortion bans) will fail so badly they’re not worth the effort, and that they will only prove an embarrassment. And there are also some policy disagreements about what it would actually mean to give personhood rights to fetuses and whether that could have unintended consequences, such as disallowing certain types of birth control. This was what Colorado’s new senator, Cory Gardner, a Republican, was getting at in March when he withdrew his support for Amendment 67.

Marcotte is particularly relieved that Coloradans shot theirs down:

Since the law would have made it a matter of homicide to cause a miscarriage, it could have been used to prosecute women who had miscarriages by accusing them of somehow failing to do more to care for their fertilized egg babies. “If you get a prosecutor who wants to make a statement about unborn life,” Aya Gruber, a law professor at the University of Colorado told Politico, “Absolutely, you could have prosecutions for miscarriages. This law allows it. It allows it!”

At the same time, 53 percent of Tennesseean voters approved an amendment to their state constitution that will make it easier for lawmakers to place restrictions on abortion. Amelia Thompson-Deveaux calls the amendment “the culmination of 14 years of work” by pro-life advocates:

They began organizing in 2000 when the Tennessee Supreme Court struck down several abortion restrictions on the grounds that they violated women’s right to privacy. That decision has until now kept Tennessee from passing anti-abortion laws like the ones that have closed abortion clinics in neighboring states. It’s been an expensive fight — in the last three weeks of October alone, the amendment’s opponents spent more than $3.4 million. Now the protections that have shielded the state’s seven abortion clinics will disappear.