Ari Armstrong's Free Colorado

Colorado’s anti-abortion “personhood” advocates held a media conference November 21 in which they announced their proposed language for the 2012 ballot.

Previously I posted video of the entire event. Here I add the replies by Monica McCafferty, spokesperson for Planned Parenthood of the Rocky Mountains, and Emilie Ailts, executive director of NARAL Pro-Choice Colorado.

For my criticism of the “personhood” proposals, see the paper I coauthored last year.

The so-called “personhood” movement has been knocked down badly in Colorado twice before in the 2008 and 2010 elections. By wide margins voters defeated ballot measures intended to ban all abortions. But the measures’ organizers are back with a new, slightly modified anti-abortion measure for the state’s 2012 ballot (assuming the group gathers enough signatures).

I attended the group’s November 21 media conference at the state capitol, filmed it, and asked a few questions. Please note that my purpose in filming the event was largely journalistic; my main goal was to record the views of the group’s participants. Of course I pressed some questions on matters that I find important. Embedded is the complete video of the event, plus some extra footage of Kristi Burton Brown answering questions.

My opposition to the “personhood” measures is well known (in the relevant circles); I coauthored a paper against the measures in both 2008 and2010.

The proposed 2012 measure is mostly the same as the previous measures, though it spells out some of its implications in greater detail. I posted thefour-page media packet distributed by the group’s organizers, including a page with the complete text of the new proposal:

From Personhood Nov. 21, 2011

The major difference for the 2012 measure is that it explicitly allows abortions to protect the life of the pregnant woman. One of the problems with the previous measures is that they left the life of the woman in a precarious state under certain conditions. See the section of the 2010 paper, “Abortions to Protect a Woman’s Health.” The new measure states:

Medical treatment for life threatening physical conditions intended to preserve life shall not be affected by this section. … “Medical treatment for life threatening physical conditions intended to preserve life” includes but is not limited to treatment for cancer, ectopic and molar pregnancy, twin-to-twin transfusion syndrome, and placenta previa.

This language would give doctors some much-needed latitude to perform abortions to save the life of the woman. (Note that the measure’s supporters are loath to call these “medical treatments” abortions, but that’s what we are in fact talking about.)

But what if a doctor needed to perform an abortion only to protect a woman’s long-term health, as opposed to her life? Abortions under such circumstances would be banned if the measure were passed and fully enforced. And ambiguous cases would be decided by prosecutors and the courts.

Still, the measure’s supporters have made a serious effort to address one of the concerns with the earlier measures. Unfortunately, the remaining problems with the measure are manifold and severe. Consider:

* Obviously, the measure would totally ban all elective abortions.

* The measure explicitly says that abortions would be banned even in cases of rape or incest.

* The measure would ban all forms of birth control “that kills a person”; i.e., that can prevent a zygote (post-fertilized egg) from implanting in the uterus. Notably, that includes the birth control pill, the IUD, and “morning after” drugs.

* The measure would ban all fertility treatments ”that kills a person”; i.e., that involves the destruction of embryos created outside the womb. In practice, the measure would shut down most fertility procedures that involve creating embryos outside the womb and limit such treatments to the wealthy and to those with rare physiological conditions.

* The measure would subject women who get abortions (along with those who assist her) to severe criminal penalties, counting an abortion legally as “murder.”

* While the 2012 language explicitly protects women with “spontaneous miscarriages,” the entire problem is that it would be the responsibility of coroners, prosecutors, and the courts to distinguish natural miscarriages from intentional harm to the fetus. So the new language changes nothing on that score.

One thing that bothered me about the media conference is Burton-Brown’s insistence that her opponents are liars. But it is Burton-Brown herself who has been consistently cagey about the implications of the “personhood” measures. During the conference, she flatly refused to state whether “personhood” would ban the birth control pill (hint: if consistently enforced it would). In any case, neither Burton-Brown nor anyone else has found a single factual error in the paper coauthored by Diana Hsieh and me (though obviously the “personhood” crowd disagrees with our analysis of the basic facts). In general, people ought not call their opponents liars unless they have really good evidence that such is the case; Burton-Brown presented no such evidence (though I have not evaluated all the claims of all of the opponents of “personhood”). Indeed, the main reason for the 2012 rewrite is to address various criticisms.

Obviously I’ll have much more to say about Colorado’s 2012 “personhood” measure in the coming months. For now, it suffices to say that it is the identical measure as before, only with more verbiage, with the notable exception of the language about “life threatening physical conditions.” It richly deserves defeat again, and I do not doubt that Colorado voters will oblige. The problem is that, if unchallenged, it softens the ground for incremental abortion restrictions leading to a long-run total ban.

Meanwhile, Team Obama rejoices as the Republican Presidential candidates fall all over themselves endorsing such wildly unpopular nonsense.

November 29 Update: See the replies by Monica McCafferty, spokesperson for Planned Parenthood of the Rocky Mountains, and Emilie Ailts, executive director of NARAL Pro-Choice Colorado.

Colorado Republicans better hope the Secretary of State finds that the “personhood” supporters — those who want to define a fertilized egg as a person will full legal rights — don’t have enough signatures for the ballot, after all.

Personhood Colorado announced today:

Personhood Colorado, sponsors of the 2010 Personhood Amendment, today submitted 46,671 signatures to the Colorado Secretary of State’s office.

On March 4, the Colorado Secretary of State disclosed that 20.63% of the 79,648 signatures submitted by Personhood Colorado were invalid. As allowed by Colorado law, volunteers then had 15 days to replace the invalid signatures with new, valid voter signatures. That translated to over 1,000 signatures per day.

The Huffington Post also reports the story.

For a comprehensive explanation for why the measure is wrong in theory and horrifying in practice, see the paper on the 2008 version of the measure by Diana Hsieh and me. In brief, the measure if fully implemented would outlaw practically all abortions, even in cases of rape, incest, fetal deformity, and risk to the woman’s health; outlaw common forms of birth control including the pill; and outlaw most fertility treatments involving egg implantation.

Even more disturbing, many Colorado Republicans have endorsed the measure. I already knew that underdog candidate for governor, Dan Maes, endorsed it, though he seems confused by some of the measure’s implications.

Today I learned from the Christian Family Alliance of Colorado that Ken Buck — a strong challenger for U.S. Senate — and both Cory Gardner and Tom Lucero — who are trying to upset Betsy Markey in the Fourth Congressional — have also endorsed the measure.

I want to make something clear at the outset, just so no Republicans are surprised later on: I will vote against any candidate who endorses the monstrous “personhood” measure. That is, I will not abstain from voting, I will vote for the Democrat, as my strongest available statement.

Of course, there is still time for any candidate who has endorsed the measure to repent, confess the error of his or her ways, and articulate a position closer to sanity.

Did Republicans somehow fail to notice that the 2008 “personhood” measure got trounced, and overall voters responded negatively to the faith-based politics of the GOP?

Of course, 2010 is a new election cycle, and voters may be so utterly disgusted with the Democrats’ handling of the economy that they may vote Republican, regardless of what loons the GOP throws up.

Betsy Markey, for example, has said she plans to vote for the disgusting Democratic health bill, giving me the impression that she has already resigned to losing. (I’m not in Markey’s district, thankfully, so I won’t have to hold my nose and vote for her, assuming her opponents stick with their foolish endorsements of “personhood.”)

Likewise, I don’t think either Michael Bennet or Andrew Romanoff can keep the U.S. Senate seat for the Dems, regardless of who the opponent is. Those two are hard-left Denver Democrats, and they’ve had to run further left in the primary. Still, it could become a tough race, and “personhood” offers rich ground for effective attack ads. (So far as I can determine, Jane Norton, still the most likely candidate, has remained silent on the “personhood” issue.)

In the governor’s race, John Hickenlooper is avoiding a primary and trumpeting his pro-business sentiments and credentials. I think Hickenlooper will be pretty tough to beat. Like Norton, frontrunner Scott McInnis has (so far as I can tell) remained silent on “personhood,” but he has tried to toe the anti-abortion line, so the appearance of the “personhood” measure on the ballot could still hurt him significantly. If the measure indeed makes the ballot, voters will be continually reminded about the ultimate aims of the anti-abortion zealots and the severe harms their laws would impose.

Do I despise Democrats or Republicans more? As today’s political news illustrates, that depends entirely on which party I’m thinking of at a given moment.

Update: Welcome Denver Post readers.

For more information about the “personhood” measure in its 2010 form, please see the following two articles.

What Are the Implications of ‘Personhood?’

‘Christian Soldiers’ Seek Abortion Ban

If fully implemented, the so-called “personhood” measure that may again appear on Colorado’s ballot to define a fertilized egg as a person will outlaw all or almost all abortions, excepting procedures necessary to save the life of the woman. On that point advocates and critics of the measure agree. More contentious are claims about the measure’s impact on birth control, fertility treatments, and legal issues surrounding miscarriages and women’s health.

Ironically, a document from PersonhoodCO (the organization supporting the measure), “Scare Tactic Alert”, attacks straw men, ignores substantive criticism, and obscures key issues of the debate even as it promises to reveal the “outright lies” of critics and to give “truthful answers.” However, the document does clearly reveal the intentions of the measure’s supporters on a number of important points. It is worth reviewing to note both where it misleads and where it clarifies the positions of the measure’s sponsors.

“It Will Ban Abortion”

The document says flatly of the measure: “It will ban abortion.” If passed and implemented, it will ban all elective abortions. It will ban all abortions even in cases of rape, incest, and fetal deformity.

Embryonic Stem-Cell Research Will Be Banned

Under the “personhood” measure, any scientific research or medical procedure that involved the destruction of a fertilized egg (or embryo at any stage) would be outlawed, as the measure’s sponsors loudly declare.

Abortion Will Be Deemed Murder

The document makes clear that, under the “personhood” measure, a woman will be criminally charged for getting an abortion. A woman will be charged with a crime if she “acted with criminal culpability which includes the performance of an act and a matching criminal intent. These standards would be the same as would be applied to any mother who harms her children, born or preborn.”

The document confirms: “actions taken with criminal intent will be punished under the existing criminal code, irrespective of whether the child is in or out of the womb.”

Abortion Could Trigger the Death Penalty

Not only would abortion be considered murder under the “personhood” measure, it could be punished with the death penalty. This applies both to doctors who perform abortions and women who get them.

The document denies that the measure “will threaten doctors who perform legitimate surgeries.” However, a “legitimate” surgery, according to the document, cannot include any intention “to kill the child in the womb.”

The document states: “In Colorado, the death penalty is only available for first degree murder with aggravating factors. First degree murder requires deliberation and intent.”

While the document does not directly state that the death penalty could also apply to women who obtain abortions, the document states that women will be punished “under the existing criminal code.” By implication, if a woman deliberately and intentionally aborts an embryo or fetus, she could be subject to the death penalty.

Colorado Statute 18-1.3-1201(1)(a) 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…”

Birth Control That Can Prevent Implantation Will be Outlawed

The “Scare Tactic Alert” document claims it is a “lie” that the measure “will ban contraception.” However, the document also defines “contraception” strictly to mean something that prevents the fertilization of an egg. Any form of birth control that prevents a fertilized egg from implanting in the uterus will be outlawed under the measure. Notably, this includes the birth control pill.

The document states: “the beginning of life (under normal sexual reproduction) takes place when the sperm touches the ovum. Barrier methods of contraception that prevent the union of the sperm and the egg will not be outlawed, since neither a sperm nor an egg by itself is a human being.”

The birth control pill acts primarily as a contraceptive, in that it prevents the fertilization of an egg. However, according to the documentation distributed by the manufacturers of the birth control pill, it can also act to prevent the implantation of a fertilized egg.

For example, my wife takes TriNessa. According to WebMD, this birth control pill acts to “prevent pregnancy in 3 ways. One way is by preventing the release of an egg (ovulation). A second way is by changing the cervical mucus, making it more difficult for an egg to meet sperm (fertilization). A third way is by changing the womb lining, making it difficult for a fertilized egg to attach to the lining of the womb (implantation).”

Watson Pharmaceuticals, the producer of TriNessa, agrees that this pill can act to “reduce the likelihood of implantation.”

As Diana Hsieh and I review in our paper on the subject (page 4), the birth control pill is more effective than condoms at preventing unwanted pregnancy. My wife and I find it to be the best form of birth control for us, and we utterly reject the insane claims of of the “personhood” advocates that using the birth control pill is morally wrong, much less the equivalent of murder that should subject women to severe criminal penalties.

Most Fertility Treatments Would Be Outlawed

PersonhoodCO claims it is a “lie” that the measure “will ban in vitro fertilization.” However, as Diana and I explain in our paper, fertility treatments generally involve the destruction of fertilized eggs as a necessary aspect of effective treatment (see pages 6-7).

The “Scare Tactic Alert” document admits that fertility treatments that involve the destruction of fertilized eggs would be banned. The measure would, in effect, practically ban fertility treatments for nearly all women.

As Diana and I summarize, “[F]ertility clinics would be left with two options. They could fertilize one egg at a time, vastly raising the costs and time of the procedure because most eggs don’t fertilize. Or they could implant all fertilized eggs into the woman, in some cases posing a health risk or producing more children than a couple can raise well. The practical result of Amendment 48 likely would be to shut down Colorado’s seven reproductive clinics.”

Doctors Would Be Subject to Prosecutorial Oversight

PersonhoodCO states, “[I]n those extremely rare situations where a woman needs treatment that might unintentionally result in the death of the child, the doctor would not have acted with intent to kill or even harm the child, but with intent to cure the mother.” (Note here that PersonhoodCO is simply defining any procedure “where a woman needs treatment” as not counted as an “abortion.”) Furthermore, when abortion was outlawed “there were no prosecutions of doctors for legitimate medical treatment,” the document claims.

There are two main problems with these claims of PersonhoodCO. First, what counts as a “legitimate medical treatment” is precisely the issue in question. Now, who decides such matters is the woman in consultation with her doctor. Under the “personhood” measure, politicians, prosecutors, and judges will decide. Knowing this, doctors will tend to err on the side of not acting to protect a woman’s health. If a doctor chooses not to take action in a difficult case, he will suffer no criminal penalty even if the woman dies. If the doctor chooses to act, he may be charged with murdering a zygote by a prosecutor who doubts the procedure was necessary.

Second, today doctors have much better equipment and procedures than they had several decades ago, so doctors today simply have more opportunities to medically intervene to protect a woman’s health.

The broader issue is that doctors may effectively be prevented from acting in cases where “only” the woman’s health, rather than her life, is at risk. By the logic of the “personhood” measure, a doctor should at least sometimes allow a woman to suffer long-term health consequences in order to save a zygote. The measure takes such determinations out of the hands of women and doctors and places them in the hands of government officials.

Suspicious Miscarriages Could Invite Prosecution

PersonhoodCO claims it is a “lie” that the measure “will threaten women who miscarry with criminal prosecution.” The problem with that claim is that telling the difference between an unintentional miscarriage and an intentional act can be difficult. Who gets to decide whether a woman’s diet, herbal remedies, or physical damage was intended to cause an abortion? Again, under the “personhood” measure, the answer is government officials, so far as prosecution is concerned.

The Abortion Industry?

One of the more dishonest claims made by PersonhoodCO is that criticisms are coming from “the abortion industry.” No doubt clinics that perform abortions also oppose the measure. However, many independent critics, including Diana and me, are in no way a part of the “abortion industry,” and PersonhoodCO’s smears are childish and dishonest.

Diana and I wrote our paper, Amendment 48 Is Anti-Life: Why It Matters That a Fertilized Egg Is Not a Person, without financial compensation. We wrote and promoted that paper because we are horrified by the vicious nature of the “personhood” measure.

Any reader of our paper will realize that PersonhoodCO is attacking straw men in its “Scare Tactic Alert.” We do not, for example, claim that the measure “will ban contraception.” Instead, we claim, as PersonhoodCO itself claims, that the measure will ban forms of birth control that may prevent the implantation of a fertilized egg.

Conclusion

At least the “Scare Tactic Alert” clearly lays out many of the intentions and implications of the “personhood” measure. Unfortunately, the document also smears critics of the measure, distorts what critics of the measure have said about it, ignores substantive criticism published in 2008, and understates the impacts of the measure in areas such as the potential for criminal prosecution in cases of suspicious miscarriages.

By implying that all criticisms of the “personhood” measure are “scare tactics,” PersonhoodCO wrongly suggests that substantive criticisms of the measure have been exaggerated. Notably, not a single advocate of the “personhood” measure has attempted to directly refute anything from the 2008 paper.

Critics of the “personhood” measure do not need to resort to “scare tactics” to defeat it. The objective facts about the measure and its implications are truly horrifying.

The so-called “personhood” effort, which would ludicrously define a fertilized egg as a “person” with full legal rights, submitted signatures for the 2010 ballot on February 12. The number of valid signatures may fall short of the legally required minimum, and, should the Secretary of State declare as much, the group will have an additional fifteen days to try to close the gap.

I imagine no one in the state is happier about the measure’s potential demise than Republican strategists, who are busily attempting to persuade voters that this year’s election is about jobs, not the GOP’s promiscuous relationship with the religious right.

I knew the effort was in trouble when, the day before the deadline, thePersonhood CO web page announced the group still needed “hundreds of signatures” to make the ballot.

Keith Mason of Personhood USA put a happy face on the effort in a February 12 media release, completely ignoring the likely problem of invalid names. Mason announced, “The signatures submitted totaled 79,817, although only 76,047 were required.” The release claims, “Once the signatures are verified by the Colorado Secretary of State, the amendment will be placed on the 2010 ballot and put to a vote.”

Wendy Norris offers a more realistic assessment at RH [Reproductive Health] Reality Check:

Tyler Chafee, senior associate with RBI Strategies and Research, said, “There is very little chance that voters will be seeing this measure on the 2010 ballot.”

State initiatives generally try to collect 30 percent more signatures than required to cover the expected names that are disqualified because they are not registered voters. Chafee predicts the latest attempt by anti-choice activists will fall about 13,000 signatures short. He based his estimate on the same signature approval rate, a relatively high 79 percent ratio, on the group’s 2008 petitions. In that campaign, more than 131,000 names were submitted to the Colorado Secretary of State, almost double the required number and 50,000 more than this go-around.

Norris also explains what happens next:

Now, the secretary of state’s office now has 30 days to verify that the petition signatures are from legally registered voters. … Should the campaign come up short, proponents will have an additional 15 days to secure the remaining signatures needed.

But based on the daily signature gathering rate over the 172 days they circulated petitions through Friday’s deadline, the group would have to get new names at twice that clip to reach the estimated 13,000 deficit within two weeks.

Aside from her wishy-washy comment that the measure “just goes too far,” Amanda Mountjoy of the Republican Majority for Choice released an admirably strong condemnation of the proposal:

Today [February 12] marks a setback in our state’s efforts to overcome the wave of big government intrusion and waste sweeping our nation. The problem with the “personhood” amendment lies in its fundamental contradiction. It poses as a measure designed to protect basic rights. In fact, personhood would violate the rights of Colorado women by granting competing rights to a fertilized egg, and would put government smack dab in the middle of medical decisions ranging from birth control, to in-vitro fertilization, to miscarriages, and abortion.

As Republicans, we cannot sit by while single-issue fundamentalists dramatically change our state constitution. We are already disheartened over the creation of new big government bureaucracies in Washington, DC. We will not allow those same intrusions to take hold in our state and hand over government control on such private decisions.

The media coverage of the measure reveals a great deal about the motives of its supporters. I will write a subsequent post about that. For now, though, I hold out hope that the measure won’t make the ballot. I have plenty of battles to fight already!

For background, see the paper on the 2008 measure:
Amendment 48 Is Anti-Life: Why It Matters That a Fertilized Egg Is Not a Person