Eliza Krigman

January 22, 2008

Today marks the 35th anniversary of Roe v. Wade, the historic Supreme Court case that legalized abortion in the United States. It is a legal cornerstone upon which the right to choose and women’s reproductive rights rest. One of today’s challenges to Roe is Colorado’s “Definition of Person” ballot initiative, approved by the Colorado Supreme Court in a 7-0 decision last November. The initiative aims to amend the state’s constitution to define a fertilized egg as a person.* If adopted in this November’s election, the amendment would grant the state constitutional protections of inalienable rights, justice, and due process to microscopic fertilized eggs.

This isn’t the first ballot initiative that has sought to chip away at Roe. South Dakota passed an outright ban on abortion, but it was repealed in a 2006 ballot initiative.* The measure didn’t pass, in part because the measure as written didn’t include exceptions for rape or incest. An eerily similar ban was proposed in Georgia early last year. Louisiana enacted a law giving rights to embryos back in 1986. Today there are many state-level initiatives that seek to give rights to human embryos. The measure that could appear on the ballot in Colorado this November is more evidence that the pro-life movement has begun highly disciplined grassroots movements in the states to implement constitutional amendments. Such amendments would have to be taken all the way to the Supreme Court in hopes of overturning Roe. The Colorado for Equal Rights campaign, or (CER), and its founder, 20 year-old Kristine Burton, are spearheading the “Definition of Person” initiative.

Burton is the oldest of three home-schooled children and graduated high school at the age of 15. At 17, she enrolled in Oak Brook College of Law & Government Policy, a California-based correspondence law school that is overtly religious. The school’s Web site says that “Oak Brook emphasizes Biblical standards of moral character and encourages its students to seek the Lord Jesus Christ for wisdom and understanding in their studies. Through the personal discipline of studying and applying Scripture, students maintain the awareness that God is the ultimate moral authority to Whom we are accountable.”

Between now and May 13, CER must gather 76,000 signatures–less than two percent of Colorado’s total population–to add its initiative to the November ballot. Rich Coolidge, spokesperson for the Colorado Secretary of State, says proponents are encouraged to collect closer to 100,000 signatures because the state will verify that the signatures are registered voters by randomly checking 4,000 or 5 percent of the total number of signatures, whichever is greater. If the signatures are deemed valid, the initiative will be added to the ballot in November. Then, all CER would need is a simple majority to make it law.

The CER Web site proclaims it “was founded with the goal of protecting human life.” A downloadable fact sheet (PDF) the organization distributes states the campaign aims “to transform our nation from a culture of death into a culture of life.” Of the two pictures featured, one is of several pre-school aged children and the other is of a fully developed fetus. All are common pro-life rhetoric and images, yet the site never directly says the goal of the amendment is to open the door to outlawing abortion. In practice, of course, that’s exactly what the amendment would do.

The text of the initiative itself doesn’t even mention the word abortion, and active supporters are careful to side step the abortion question. Audrey of the Oak Creek Grade General Store in Colorado, one of CER’s 10 petition distribution points, claims it had not occurred to her that this could lead to a ban on abortion.

Pro-choice organizations say that this initiative is not only the latest strategic assault on a woman’s right to choose but could also threaten access to birth control. Furthermore, they contend that the amendment could have implications far beyond the realm of reproductive health. Toni Panetta, Deputy Director of NARAL Pro-Choice Colorado, says that giving fertilized eggs legal rights could potentially make insurance companies obliged to grant fertilized eggs the same health care they would any other insurance customer.

The Colorado initiative would throw all terminated pregnancies in the same category, regardless of the cause. In addition to criminalizing abortion, “it could allow miscarriages to be investigated,” says Jodi Berger, of Planned Parenthood Colorado. In practice, it is nearly impossible to tell which eggs have been fertilized and which haven’t. Some women miscarry without ever knowing they were pregnant.*

Burton dismisses the notion that the amendment will ban abortion or have other unintended consequences. “What we’re trying to do here is define when life begins,” she says. The relevant text of the initiative states that the “terms ‘person’ or ‘persons’ shall include any human being from the moment of fertilization.” CER, in the meantime, is emphasizing the limited scope of the legislation. “People are trying to overcomplicate the issue so that it’s something it is not…this is about the truth,” Burton says.

But the office of the Colorado General Assembly, ostensibly a neutral body vested with the authority to interpret the language of the initiative, raised the same issues as Planned Parenthood and NARAL. Their Review in Comment memo states, “It appears that the proposed language could affect a woman’s constitutional right to have an abortion.” Subsequently, the assembly anticipates that due process procedures could be applied prior to an abortion. Under those circumstances, it’s unclear what form due process would take. The result of the proposed amendment is a legal quagmire.

Berger and Panetta, as representatives of the pro-choice community, are confident that once the Colorado voters are educated about this initiative, they will turn it down. Panetta says Colorado has a history of voting pro-choice and that voters will reject a measure that could ban abortion and curb other reproductive health rights. In fact, Panetta thinks the issue will provide a good platform to engage Coloradoans in a dialogue about reproductive rights.

Burton and the supporters of CER may subscribe to a philosophy where God is the ultimate moral authority, but their conclusions about the point at which life begins have no place in Colorado’s state constitution. On the anniversary of Roe, the right to choose must always be guarded against people like Burton and CER seeking to undo it.

Eliza Krigman is a staff and research assistant for the Brookings Institution’s economic studies program. She graduated from the University of Wisconsin-Madison in 2005.

*Edited from original text.