Colorado Amendment Question 48 - What's the Point?

I have to admit that when I first heard about the proposed amendment to the Colorado Constitution that would redefine "person" to include human embryos from the moment of fertilization, I got a little excited. It wasn't for any of the reasons you might expect from a normal person, though--it was because I foresaw a HUGE legal glitch. You see, if the Colorado Constitution defined "person" in that way for purposes of Colorado law, there would have been a teeny, tiny problem: the state's murder statute would have been effectively rewritten to include first-trimester fetuses and would thus have violated the current interpretation of the U.S. Constitution. Just like that, the statute could have been struck down and all murder could have been legal in Colorado.

I guess I wasn't the only one who thought of this, though, because the proposed amendment DOESN'T redefine "person" for purposes of all Colorado law: it only redefines the word as it's used in specific provisions of the Constitution.

Thus, no major legal snafu...just a whole lot of nothin'.

The provisions specified are, of course, those that relate to inalienable rights and such...but what to do? Life, for instance, is an inalienable right. And the Colorado Constitution may well be amended to extend that inalienable right to a fetus at the moment of conception. But then what? The current interpretation of the U.S. Constitution--the interpretation that's prevailed for decades--says that states can't limit the right to elective abortion in the first trimester. Thus, the state of Colorado can deem that unborn child a "person" and say it can't be deprived of life without due process of law, but what due process is available? The only due process permissible under the U.S. Constitution would be a hearing or other process to determine that the woman was, in fact, in the first trimester of her pregnancy. Once that was determined, the U.S. Constitution would prevent any further regulation of her access to an abortion.

Doesn't do that "person" a whole lot of good to have been renamed, does it?

Naturally, lawmakers and lobbyists alike know this. So what are they doing? What's the point of spending time and money and commanding the time and attention of Colorado voters as if this were a serious issue, when they all know that the practical effect of the amendment will be nonexistant?

I guess it looks good on a resume.

Remember Roe v. Wade?

Or perhaps the better question would be: Did you ever know what Roe v. Wade says?

I've seen pro-life literature that says, "Did you know that Roe v. Wade allows elective abortions up to the seventh month of pregnancy?" Nope, I didn't know that. And I read the case.

I've seen seen pro-choice people insist that if Roe v. Wade were overturned, the whole country would be immediately cast into a dark world of back-alley abortions...overlooking, of course, the fact that before that happened, each state would have to enact independent legislation prohibiting abortion.

With the Presidential election around the corner, the issue is once again getting a lot of press, but little (if any) of it accurately represents just what Roe v. Wade said or the role it plays in the future of abortion law across the country.

The law that was challenged (and struck down) in Roe v. Wade criminalized abortion in all cases except where it was a life-saving procedure. The United States Supreme Court found that such a restrictive statute violated the 14th Amendment Due Process Clause and that states could exercise varying degrees of discretion in regulating abortion, depending upon the stage of pregnancy.

During approximately the first trimester, states could not limit the right to abortion--that was to be left to the "medical judgment of the pregnant woman's attending physician."

From the end of the first trimester to viability, the state could "regulate abortion in ways that are reasonably related to maternal health".

After viability, the state could regulate--or even prohibit--abortion except where necessary to preserve the life or health of the mother.

One interesting point is that the regulation allowed post-first-trimester was required to be reasonably related to maternal health, whereas that shifted post-viability and the state interest in preserving the "potentiality" of human life was deemed sufficient reason for the restrictions.

It is important to note, however, that the Supreme Court ruling only placed a limit upon the regulations a state could impose--it did not impose any regulations itself. Thus, for instance, when pro-life activists say that Roe v. Wade "allows" for abortion minutes before birth, it's technically true...because Roe v. Wade doesn't put any restrictions on abortion; it simply sets forth the circumstances under which a state may do so. And that's as it should be; health and welfare provisions are specifically reserved to the states under the U.S. Constitution (and in any case wouldn't be the purview of the judiciary). What Roe v. Wade said about late term abortions was that states could forbid them, except where the mother's life was in danger. Period.

On the flipside, if Roe v. Wade were reversed, it wouldn't mean that abortion was illegal--it would mean that if states so chose, they could MAKE abortion illegal.

Obviously, Roe v. Wade was a landmark decision that changed the face of abortion law across the U.S. But abortion law is made by the states, within the parameters set forth in Roe v. Wade and subsequent cases. Before millions of Americans--pro-life or pro-choice--base their votes in the Presidential election on the chance that the next President might appoint Supreme Court Justices who might have occasion to rule on a case that might impact the Roe decision, we should all understand what the case says, and what that means to the states.