Colorado Amendment 48

Wednesday, October 8, 2008
I'm all foamy this morning, and here's why:

Colorado Amendment 48 Ballot Title:
Shall there be an amendment to the Colorado constitution defining the term "person" to include any human being from the moment of fertilization as "person" is used in those provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law?

Seriously? Seriously?

I don't even know what to say to this. Aside from the obvious goal of making abortion illegal in Colorado, what about other ramifications?

If this passes, does it mean that a woman who has a miscarriage due to an accident can be charged with manslaughter if she could of possibly prevented the accident? The mind boggles. Boggles.

Christ on a crutch, I hope this initiative fails, with a BIG, EPIC FAIL. However, since that ridiculous "marriage is between a man and a woman" amendment passed four years ago, it's possible the good voters of Colorado could go off the deep end once again.

Politics, how I have come to hate you, and the idiocy that is executed in your name.

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Note: Due to the controversial nature of this topic, I invite first time visitors to review my comment policy before you choose to participate in the discussion. For this posting, no warnings will be given - trolls will be summarily smacked with the Shovel of Doom™. However, polite disagreement with supporting arguments are, as always, welcome.

16 comments:

Eric said...

If this passes, I may have to move to Colorado and take the Bar there just so I can be the first person to file a habeas writ for a fetus whose momma is in jail.

"Sure, you can send Ms. Grundy to jail... but my client is being illegally detained."

On the bonus side, Second Amendment fans should be thrilled by my new ARM THAT EMBRYO! campaign which I am officially starting here, on your blog. ARM THAT EMBRYO! (the original name was ARM THAT FETUS! but "ATE!" is a better abbreviation than the spectacularly inappropriate "ATF!") believes that it is the inalienable right of every nascent person to own, possess and use the firearm of his/her/its choice, whether it's for home protection, self defense, hunting or the simple joys of recreational target shooting. ATE! believes that you can have a fetus' gun when you pry it out of the fetus' cold, dead, partially-formed hands.

I'd like to see some clinic doctor proceed with an abortion when he induces partial dilation of the cervix only to find himself looking into the cold black barrel of a Glock!

Support the rights of the unborn! Support ATE!

Patrick said...

Don't forget about taxes -- if they are a person, are they a dependent? Can I write off my unborn children on my income taxes? How about car pool lanes? What about age? will we need to adjust our ages, from birth date to conception date -- hey I can draw social security/vote/drink 9 months earlier than previously planned.

vince said...

I think there are problems with this amendment, and both Eric (is his usual Eric way - not a snark, I find Eric's sarcasm on point, as usual) and Patrick correctly point out issues that I'm sure the backers of the amendment haven't though through..

But there needs to be a way to offer some statutory fetal protection. A couple of examples of where this is needed come to mind.

Malpractice - if a medical professional screws up and causes a fetus to be deformed and die and no harm is done to the mother, the family needs recourse.

Criminal protection if a fetus is injured or killed due to a criminal act such as rape, assault, attempted murder, etc.

I know that sometimes some states have some protections. But the unwanted loss an unborn child, define it how you will, should have criminal and civil consequences.

Full disclosure: I am of the opinion a fetus is a human being. My opinion was developed while I was an atheist, which I no longer am. I don't believe all abortions should be illegal. And yes, I can discuss without ever even being threatened with the Shovel of Doom™.

Janiece Murphy said...

Eric, you can stay with us until you find a place of your own. And Go, ATE! If you have a logo, I'll be happy to post it on the right.

Welcome, Patrick. Thanks for pointing that out - I hadn't thought of that aspect. In a similar vein, can a fetus then request public services if this passes?

the backers of the amendment haven't though through..

Vince, based on what I've seen, I really don't think they care. If your one and only goal is to make abortion illegal under any circumstances, collateral legal damage that occurs as a result of your crusade is immaterial.

But you bring up an interesting point - what legal protection should a fetus receive under the law in the circumstances you describe (if any)? Would providing such protections lead to making abortions illegal or unavailable?

These questions are genuine moral dilemmas, and reasonable areas for discussion, unlike this retarded Amendment.

And yes, I can discuss without ever even being threatened with the Shovel of Doom™.

Damn straight. One of the hallmarks of the UCF - the ability to have disparate opinions without making it personal.

Eric said...

Vince: without getting into whether a fetus is a person or not, you can address your concerns without a bit of political theater (which is what the Colorado amendment is) that radically redefines "personhood," changes the state Constitution, and raises all sorts of unintended (and funny) consequences. For instance, with regard to your second issue, NC law says:

§ 14-18.2. Injury to pregnant woman

(a) Definitions. -- The following definitions shall apply in this section:

(1) Miscarriage. -- The interruption of the normal development of the fetus, other than by a live birth, and which is not an induced abortion permitted under G.S. 14-45.1, resulting in the complete expulsion or extraction from a pregnant woman of the fetus.

(2) Stillbirth. -- The death of a fetus prior to the complete expulsion or extraction from a woman irrespective of the duration of pregnancy and which is not an induced abortion permitted under G.S. 14-45.1.

(b) A person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which injury results in a miscarriage or stillbirth by the woman is guilty of a felony that is one class higher than the felony committed.

(c) A person who in the commission of a misdemeanor that is an act of domestic violence as defined in Chapter 50B of the General Statutes causes injury to a woman, knowing the woman to be pregnant, which results in miscarriage or stillbirth by the woman is guilty of a misdemeanor that is one class higher than the misdemeanor committed. If the offense was a Class A1 misdemeanor, the defendant is guilty of a Class I felony.

(d) This section shall not apply to acts committed by a pregnant woman which result in a miscarriage or stillbirth by the woman.


That's not a bad little piece of legislation. It adequately covers your second set of concerns while passing Constitutional muster. And maybe best of all, it doesn't attempt to legislate a metaphysical/religious question.

After all, this statute applies whether a cluster of cells one hour after fertilization is a "person" and it applies whether or not a fetus in the final trimester that is non-viable is a "person." It doesn't extend rights to anyone, which is appropriate for a criminal statute (criminal laws deal with the obligations of the state to keep the peace and protect the citizenry--this is why "victims' rights" laws are horribly misguided: the rights of victims of misconduct against the perpetrators is traditionally a civil matter and was treated as such until fairly recently). Rather, the statute in question essentially says that the State has an increased interest in [protecting pregnant women/discouraging crimes against pregnant women] and therefore what is effectively a sentencing enhancement will apply in such cases.

(E.g. in NC, Robbery With A Dangerous Weapon is a class D felony punishable by a maximum sentence of 229 months in prison; such a crime that results in a miscarriage becomes a class C felony, with a maximum punishment of 261 months in prison [active time is mandatory without written findings of "extraordinary mitigation"--if I'd ever seen "extraordinary mitigation," I might be able to tell you what it is, but I haven't and I can't].)

In any case, that's how you do it criminally if you're an anti-Second Amendment killjoy who refuses to accept the God-given right of an embryo to hunt and protect the womb he/she/it lives in.

Civil is trickier, and I don't practice it, but I think you'll find plenty of causes for action when negligence or a tort is committed and a fetus dies.

Janiece Murphy said...

Vince, does the law Eric describes provide the protections you had in mind?

vince said...

On the criminal side, yes. That appears to be a pretty good law.

Random Michelle K said...

Eric,

As somewhat of a non sequitur, I'd like to point out that there are actually special programs in some prisons not just for pregnant prisoners, but for female prisoners with infants--these women are allowed to keep their children with them for some period of months (that I don't remember).

This program has benefits not only for the infant, but also for the mother.

So I don't think your writ will work, since there are already infants in prison. In other words, precedent has been set. Yes?

Eric said...

Michelle: to give a serious answer to a serious question regarding an issue I raised facetiously ( :-) ), if an unborn child is a person as defined for the purposes of "the provisions of the Colorado constitution relating to inalienable rights, equality of justice, and due process of law," then, no, the precedent hasn't been set. Due process in American law includes the notion that no person may be deprived of law without a hearing, and I'm assuming (tho' I may be wrong) that Colorado is like most states in having state constitutional provisions regarding state habeas corpus.

Probably most people don't realize it, but most states have their own functional equivalent to the Federal "Bill Of Rights." Generally, states can offer their citizens more rights, but never fewer than the minimums guaranteed to citizens via the 14th Amendment to the U.S. Constitution.

So, if this Amendment ballot passes, it's quite likely there would be theoretical grounds to get unborn "persons" out of local and state facilities, but not federal facilities (since the U.S. Constitution doesn't currently extend its protections to the unborn).

It's a silly scenario, of course--but the Colorado ballot is a silly idea.

Random Michelle K said...

BUT,

Infants (current defined as persons) are in state prisons under the current system and no one is complaining. (All I remember about the program is that it was west of here.) So if the program already exists in Colorado is the precedent that people under the age of (a year?) are already being held in prison and there have been no complaints, problems or issues?

So if an unborn child is seen as just a really really young person, is not it already a precedent that the state has already decided that really really young people can be held in prison with their mothers?

And to address something brought up earlier, I believe that there are some societies see your third month as your first birthday.

At least it was a special date for some of my Chinese friends when their children were born, and I'm thinking it was their a celebration of their first year of being alive.

Eric said...

The Colorado amendment, as described, extends "all rights" to unborn persons that "persons" have.

Infants and children don't have all the rights that "persons" have under law in any State or Federal law, so far as I know. (They certainly don't in North Carolina.) This is the whole thing with age of majority: children don't have the right to vote, form binding contracts, disobey their parents (you think I'm kidding with that one--I'm not), to be immune from assaults (i.e. corporal punishment), nor do they have many substantive rights in school (e.g. they have virtually no Fourth Amendment rights and few First Amendment rights).

To say, "kids aren't people" is, from a certain legalistic point of view, true.

Colorado seeks to change that. Arguably, they give fetuses more rights than born children, which makes the whole thing even more perverse and bizarre.

I understand what you're saying, Michelle. But the amendment described by Janiece--and I'm assuming she's describing it accurately--extends rights of "equality of justice and due process of law" to a category of entities--people or not--who don't normally have those rights, or don't have those rights fully vested.

The notion of filing a writ of Habeas Corpus that would release a fetus from jail but not the mother was meant as an example of the utter absurdity of the Colorado amendment. Whether you believe life begins at conception or think it begins when a child is three, or some indeterminate time in between, the Colorado amendment is utterly, mind-bogglingly retarded. It's not retarded because it's Pro-Life--it's retarded because it's retarded, because it's an example of the kind of thing stupid people think sounds clever and noble when their heads have been so close to their inferior colons for so long they no longer remember what shit smells like well enough to recognize it when it's right up their noses. This is one of those odd things that Pro-Lifers and Pro-Choicers ought to be able to agree on and wonder.

Thordr said...

What about the (estimated)50-75% of fertilized eggs that fail to implant on the uterine wall? I guess the suicide rate in Colorado will climb enormously too.

Eric said...

Thordt is right! We need counseling for eggs!

(Thordt--your comment was funny as hell, just wanted you to know I laughed out loud.)

Janiece Murphy said...

No wonder the embryos want to go armed - it's tough world in there...

Steve Buchheit said...

And will it now be considered child-abuse if the pregnant woman doesn't get "proper" medical care? Say she doesn't take vitamin supplements or calcium pills, eats only junk food, insists on jogging until the third trimester, or smokes, drinks, does drugs. Could we then prosecute her for such actions and inactions?

And then what about spontaneous abortions? Are we going to investigate for murder? Have a coroner's inquest?

Bad law. All around bad law.

Random Michelle K said...

Eric,

I see. The wording makes if difference.

Mercy buckets.

Vince,

Wasn't there a case several years ago where pregnant drug abusing women were in legal trouble?

Found it.

http://www.news.uiuc.edu/news/05/1108pregnant.Html

I absolutely don't remember if the cases were resolved or dropped. I just remembered a discussion of them.