Fertile Ground for a Legal Mess
On Monday, June 2, the Denver Post Editorial Board came out forcefully against proposed amendment 48, calling the proposal to grant constitutional protections from the moment of fertilization "legal mischief". Full article available at http://www.denverpost.com/opinion/ci_9449135. A proposed amendment to the Colorado state constitution that would define a human egg as a "person" from the moment of fertilization would go far beyond its intended purpose of outlawing practically all abortions. Philosophers may debate when human life begins, but scientists are unanimous on the subject of when pregnancy begins: it's when a fertilized egg is implanted in the uterus. But the proposed Amendment 48 specifies that the egg be considered a "person" in the eyes of the law even before it is implanted in the uterus. That means, effectively, that those forms of birth control that prevent such implantation would be classified as homicide under the proposal. Even without the use of drugs, many eggs just naturally fail to implant in the uterus. Likewise, many eggs are implanted only to result in a miscarriage in the early days or weeks of pregnancy — often before the woman is even aware she is pregnant. Should a woman who suffers a miscarriage be charged with negligent homicide because she failed to protect a fertilized egg she may not have even known she carried? Should a man who fertilized an egg be entitled to file a civil lawsuit against a woman who miscarries, charging her with the wrongful death of his week-old fertilized egg? Unfortunately, none of these possibilities is far-fetched. They would be the almost certain results of the mischievous interaction of the proposed Colorado constitutional amendment with the 14th Amendment to the U.S. Constitution. ...
If a fertilized egg is a person, just what are that egg's rights under Colorado law? The question is anything but hypothetical, because the entire abortion debate that culminated in the U.S. Supreme Court's 1973 Roe v. Wade decision rests upon that language in the 14th Amendment. If the fetus is a person under the law, its life cannot be taken without due process, which means states can outlaw abortion at any stage of pregnancy. Roe v. Wade answered that question by defining a fetus as a person only in the third trimester of a pregnancy, during which it could conceivably live independently outside of the womb. Thus, under Roe v. Wade, abortions can be banned in the third trimester, as long as exceptions are made for the life or health of the other "person" in the equation, the mother. But by pushing the definition of "personhood" to fertilization, the proposed Colorado amendment creates an absurd and unworkable maze. What about women who have difficulty conceiving and try in vitro fertilization. Typically, a number of fertilized embryos are created and frozen. Once pregnancy occurs, the superfluous embryos are often discarded. But under the Colorado "eggs are people" law, that would be murder. Amendment 48 goes far beyond banning abortion and many forms of birth control. It is legal mischief and should be solidly rejected by the voters in November.
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