Danger on the ballot
Imagine a law declaring that upon becoming pregnant a woman loses her right to bodily integrity, life and liberty. Sound far-fetched? Unfortunately the answer is, not at all. In fact such a law has been proposed in Colorado, a so-called “Human Life Amendment” to the State Constitution. The amendment, number 48 on the November ballot, declares that the term person includes “any human being from the moment of fertilization” and would give fetuses “inalienable rights, equality of justice and due process of law.”
According to the Kristi Burton, the spokeswoman for the campaign in favor of this amendment, the campaign is about “the power of truth.” The truth is, however, that this amendment will be devastating to pregnant women and dangerous for both maternal and fetal health.
Constitutional law ensures that people, including pregnant women, have the right to make the own health care decisions. Yet, cases from Colorado and across the country make it clear that if fetuses are recognized as legal persons, pregnant women could very likely lose these constitutionally protected rights. That’s because laws like the “Human Life Amendment” enable the state to intervene in pregnant women’s lives in ways that are dangerous to both pregnant women and their children.
For example, in the 1980s a Colorado woman was forced to have a Cesarean section based on claims of fetal rights. Relying on notoriously inaccurate fetal monitors, doctors concluded that the fetus was in distress and recommended that the woman have a C-section. The woman refused. Even though a psychiatrist examined the pregnant woman and concluded that she was competent to make medical decisions, the hospital attorneys sought a court order mandating the treatment. In a bedside hearing, a Denver Juvenile Court judge declared the fetus a dependent and neglected child, and ordered the Cesarean section. The newborn was not in the dire shape predicted by the fetal monitoring and it was not clear that this major surgery was necessary.
In Washington, DC, doctors sought a court order to force Ayesha Madyun to have a C-section, claiming the fetus faced a 50-75 percent chance of infection if not delivered surgically. The court said, “[a]ll that stood between the Madyun fetus and its independent existence, separate from its mother, was put simply, a doctor’s scalpel.” With that, the court granted the order and the scalpel sliced through Ms. Madyun’s flesh, the muscles of her abdominal wall, and her uterus. When the procedure was done, there was no evidence of infection.
Twenty-seven years old and 25 weeks pregnant, Angela Carder, became critically ill. She, her family and her attending physicians agreed on treatment designed to keep her alive for as long as possible. Nevertheless, the hospital called an emergency hearing, and based on claims of fetal rights, ordered a Cesarean section, despite the fact that it could kill Ms. Carder. The surgery was performed, the pre-term infant survived for only two hours and Ms. Carder died two days later with the c-section listed as a contributing factor.
In each of these cases, the state intervention was based on the claim that fetuses had separate legal rights ” exactly the ones the Amendment would establish in Colorado. In none of these cases did the forced interventions or deprivations of liberty actually protect mothers or babies.
Many women, including those who oppose abortion, believe they should not lose their rights to make medical decisions for themselves and their children because they are pregnant or are in labor. If the amendment passes, Colorado’s juvenile courts will have jurisdiction whenever doctors or family members disagree with a pregnant woman’s medical decisions. As the cases discussed make clear, women’s right to bodily integrity, due process, and even life itself will disappear in the face of fetal personhood claims.
To oppose the recognition of fetal personhood as a matter of state constitutional law is not to deny the value of potential life as matter of religious belief, emotional conviction or personal experience. Rather, it is to recognize that re-writing the state Constitution to include human beings from the moment of fertilization is to exclude women from the moment they become pregnant.
L. Indra Lusero is a J.D. candidate at the University of Denver School of Law and Lynn M. Paltrow, J.D. is the executive director for the National Advocates for Pregnant Women.