‘It takes a pretty shocking campaign ad to trip our meter at this point in the election season,” says Colorado news outlet KUSA News 9, “but this one did it”: “Tom Neville Supports a Plan that Could Allow Government to Investigate Women Who Have Suffered a Miscarriage.” Neville is the Republican candidate for state senate in Colorado’s 16th district, and, according to Mainstream Colorado, the political action committee that produced the ad, the harbinger of Colorado’s coming gynecological police state.
The ad is a response to Amendment 67, the “Brady Amendment,” which will appear on the ballot in November in the Rocky Mountain State. The measure is a “personhood amendment,” spearheaded by Personhood USA and Heather Surovik, a Colorado resident whose unborn child was killed when she was struck by a drunk driver in July 2012. At the time, Colorado had no legal provision under which the drunk driver could be prosecuted for the death of her 38-week-old son, Brady.
Amendment 67 is the third such amendment to appear in Colorado in recent years, voters having rejected similar measures in 2008 and 2010 by overwhelming margins. However, November’s proposal is more narrowly written. If approved, it would extend the definition of “person” and “child” in the Colorado Criminal Code and the Colorado Wrongful Death Act to include “unborn human beings.”
There is debate on the right about whether personhood amendments are the best way to advance pro-life interests. Such constitutional amendments have failed in every state in which they have been proposed (whether via legislation or referendum) and have even elicited criticism from sympathetic groups: State Catholic conferences and various right-to-life organizations have opposed personhood measures — in Georgia in 2007, for instance.
But make no mistake: None of these groups believes that a personhood amendment will “criminalize miscarriages.” That is the talking point of opponents such as Planned Parenthood, NARAL, and Vote No 67, the main opposition campaign, which says that “any woman who suffers a miscarriage would be open to investigation for murder.”
This feverish scenario runs contrary to both experience and law.
Since 2006, Alabama has defined “person” in its homicide statute to include “an unborn child in utero at any stage of development, regardless of viability.” No women have been investigated for miscarriages in Alabama. Or in Alaska, where a similar law also took effect in 2006. Or in Kentucky (2004). Or in North Dakota (1987). Or others.
As a legal matter, the frequency of miscarriage — according to the National Institutes of Health, about 15 to 20 percent of pregnancies among women who know they are pregnant — would preclude it from being construed as probable cause for an investigation. Even Atlee Breland, blogging at Parents Against Personhood, writes, “Nobody is claiming that personhood would require police investigations for every single miscarriage, just like police don’t get involved when elderly or sick people die in their sleep.”
But even the notion that, as Breland continues, “any questionable circumstances would definitely lead to investigations of SOME miscarriages,” is misleading. The various state laws noted above are clear precedent for the narrowly tailored amendment Colorado is considering this year, as are the many other fetal-homicide laws of some type. Together, 38 states have such laws in some form, as does the federal government (the Unborn Victims of Violence Act of 2004). Colorado’s proposed amendment is, in substance, little different from what has already been enacted (with almost no fuss) in Alabama. The amendment would clarify the heretofore-undefined term “person” in Colorado’s existing homicide statutes — an oversight suggestively noted by the Colorado State Court of Appeals in People v. Lage (2009).
And as in the Alabama Supreme Court’s landmark ruling in Hamilton v. Scott in 2012, reaffirming Alabama’s inclusion of unborn persons in its homicide statutes, the constitutional protections to abortion afforded by Roe v. Wade would almost certainly be read into Colorado’s law. A “woman’s right to terminate her pregnancy” (Roe’s language) is not explicitly exempted from criminal prosecutions, but this is likely, as a practical matter, unnecessary.
Moreover, the first order of a court’s business in interpreting a new law is to inquire about the intent of the law at issue. The intent of Amendment 67 is clearly stated: “In the interest of the protection of pregnant mothers and their unborn children from criminal offenses and neglect and wrongful acts . . . ” The scenario in which a local jury and judge, ascending levels of appellate court, and the Supreme Court would all countenance the homicide conviction of a doctor for providing an abortion, or a pregnant woman for seeking one, given the explicit intent of the law, is nigh impossible to fathom.
But the experience of other states, thoughtful legal reasoning, and common sense are no protection against the demagoguery of Mother Jones, Salon, and their ilk. Most extreme is the language of the Vote No 67 campaign, which claims that Amendment 67 “would criminalize women and their doctors” — a statement that is grossly misleading (and nonsensical).
Whether personhood amendments are politically judicious is open to debate, and there is little question that, if approved, Amendment 67 would face numerous legal challenges — the conspicuous omission of an abortion exemption in the amendment’s text suggests that proponents expect nothing less. But those questions have no bearing on the public discussion of the measure, which, among opponents, has been irresponsible — and, more often than not, downright deceitful.
— Ian Tuttle is a William F. Buckley Fellow at the National Review Institute.