Medical Right Watch

Medical Right Groups Push State Ballot Measures Aimed at Challenging Roe v. Wade

Ideologically motivated measures to restrict or ban access to abortion will be put directly before voters in at least three states in the November elections. Among them is a Colorado ballot measure to add a "human life amendment" to that state's constitution, reportedly the first time that such a measure has been placed on a ballot. According to the Ballot Initiative Strategy Center, a progressive watchdog organization in Washington D.C, conservative organizations have used ballot measures on issues such as gay marriage to mobilize their supporters to vote. However, this is the first election year that a concerted effort has been made to focus on reproductive rights.

The organizations behind these measures include Medical Right heavy-weights such as the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) and the Christian Medical and Dental Associations.

Along with Colorado, South Dakota and California will have ballot measures that will ban or severely restrict access to abortion. Another measure is pending in Montana. A proposal that is still circulating in California is called “The Ban on Killing A Viable Unborn Baby Prior to Birth.” Supporters have until August 25 to collect the needed 694,354 signatures to qualify for the November ballot.

Some of these ballot measures have already fallen by the wayside. In Oregon, a “personhood amendment” was blocked from the ballot by election officials and the courts, and a similar proposal failed to work its way through a required committee process in the Georgia legislature. A confusing measure proposed for the Missouri ballot failed to gather enough signatures

Colorado
A state "human life amendment" has been certified for the ballot in Colorado and is the most stringent such proposal ever to make its way through a citizen ballot initiative process. On May 29, the Colorado Secretary of State announced that enough signatures had been collected to put the amendment on the ballot. The proposal seeks to expand the definition of personhood in the Colorado constitution to include any fertilized egg, zygote, embryo or fetus.

Colorado voters will be asked: “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?”

Officially called Amendment 48, the initiated amendment has the confusing name of the Colorado Equal Rights Amendment. The committee that initiated the measure is called Colorado for Equal Rights.

The Colorado personhood amendment is clearly intended to make abortion illegal. The measure was supported in court by the Thomas More Law Center of Ann Arbor, Michigan, a Religious Right legal organization that has defended individuals who made “wanted” posters of abortion providers. The Thomas More Center believes that, if passed and challenged in court, the state personhood amendment will create the perfect opportunity for the U.S. Supreme Court to overthrow Roe v. Wade.

Supporters of the measure include the American Life League, the Assemblies of God, and former presidential candidate Mike Huckabee.

However, the National Right to Life (NRTL) Committee opposes state personhood amendments and refuses to endorse the Colorado proposal or similar ones pushed in other states with the help of the Thomas More Law Center. James Bopp Jr., general counsel of NRTL, and an associate exchanged legal memos with the Thomas More Center in August 2007 to state their opposition to these amendments. Bopp wrote that that the time was not right for the measures and that there were not enough votes on the Supreme Court to uphold them and called instead for continued pressure for incremental restrictions that hamper women’s ability to access abortion. The Colorado Catholic Conference declined to endorse the measure on similar grounds.

Colorado Right to Life was earlier ejected from NRTL because of its aggressive demands for an all-or-nothing strategy on abortion. One of the main sponsors of the Colorado measure is American Right to Life, which calls itself “the Personhood Wing of the Pro-Life Movement.” In December 2007, its president, Brian Rohrbough, wrote a criticism of Bopp and NRTL under the heading “Legacy of Judas.” “National RTL has abandoned any pretense at a Christian worldview and biblical strategy,” he asserted, and accused NRTL of being more interested in power than an end to abortion.

The coalition of individuals and organizations opposing Amendment 48 is called Protect Families Protect Choice. Its members include the Colorado Religious Coalition for Reproductive Choice, The Interfaith Alliance of Colorado, Colorado League of Women Voters, Colorado Gynecological-Obstetrical Society, Americans for Cures, Planned Parenthood of the Rocky Mountains and others.

The coalition explains: “This amendment … would lay a legal foundation to outlaw all abortions in Colorado, even in the earliest weeks of pregnancy, in cases of rape or incest, or when the life or health of the woman is at risk.” It also says that several forms of birth control, including the Patch, the Pill, the Ring and IUDs, might be outlawed. “If passed, this amendment could establish a legal basis for the government to investigate a woman and her doctor for a miscarriage, medical care provided during high-risk pregnancies that fail, or for any action that may unintentionally harm a fetus.”

Montana
Petitions are circulating in Montana to add a state personhood ballot measure, similar to the one in Colorado. The Montana proposal, known as Constitutional Initiative-100 or CI-100, was initiated by an ultra-conservative member of the legislature and a member of the Constitution Party, Rick Jore. If certified, it would be the first such ballot measure to be placed directly before Montana voters.

The provision, which adds the definition of “person” to the state constitution as extending to the moment of conception, was drafted by the Thomas More Law Center, also behind proposals in Oregon, Georgia and Colorado. The measure would change the state constitution from saying “all persons are born free and have certain inalienable rights” to “all persons are created free and have certain inalienable rights from the moment of conception.” In addition, it would add to the constitution that a “person” includes “a human being at all stages of human development of life, including the state of fertilization, regardless of age, health, level of functioning, or condition of dependency.”

A group called Life for Montana or Life2008 has been gathering signatures to place the measure on the ballot. It has the support of Montana Right to Life, American Life League, Operation Rescue/Operation Save America, Human Life International, Pro-Life Action League, and others.

As in Colorado, the Catholic Conference of Montana opposes the measure and forbade Catholic parishes from using their facilities to support it. The conference said that the timing is not right.

A coalition of progressive organizations, Montanans for Safe and Healthy Families, is opposing the ballot measure with a campaign, “No On CI-100: Protect Women’s Health.” Among the two dozen groups who have signed on are the Progressive Clergy for Choice, American Society for Reproductive Medicine, Montana Section of the American College of Obstetricians and Gynecologists, National Family Planning and Reproductive Health Association, and Montana League of Women Voters.

South Dakota
A new abortion ban will be on the ballot in South Dakota, introduced by Vote Yes for Life, the same group that lost the fight over an abortion ban on the 2006 ballot. The new measure, known as Initiative #11, is a slight rewrite of the 2006 ban. It makes the provision of abortion a felony, except in narrow circumstances. In addition, the law redefines life as beginning at fertilization. Violation of the law carries up to ten years in prison and a $20,000 fine.

The law to be voted on is several pages long. Exceptions to the criminality of abortion are limited. The exceptions for victims of rape or incest require that before the physician may provide an abortion, the woman must report the rape or incest “immediately” to law enforcement, including the name, address and date of birth of the woman, the date of the reported rape or incest, the location where it occurred “and either the name and address of the perpetrator, if known, or, if not known, a description of the perpetrator.” The physician is also required to “obtain the woman’s consent” to collect a DNA sample from the fetus and to deliver it to law enforcement agencies.

An exception is permitted to protect a woman’s health only if there is “a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman.” An abortion may also be performed if it is “necessary to avert the death” of the pregnant woman. If life and health considerations arise, the physician must make efforts “to preserve both the life of the pregnant woman and the life of her unborn child.”

A confusing section of the law addresses contraception by saying that its sale or use is not prohibited if it is “prior to the time when it could be determined that the woman is pregnant.”

The law also retains the most damaging language of the previous ban in its definitions sections. Pregnancy, for example, is defined as beginning “from fertilization,” although medical definitions state that pregnancy begins with the implantation of a fertilized egg in the uterus, which occurs about 8 days after intercourse. An embryo or fetus is defined as an “unborn human being.” The proposed law states that “submitting to an abortion subjects the pregnant woman to significant psychological and physical health risks, and that in the majority of cases there is neither the typical physician-patient relationship nor sufficient counseling.”

Initiative #11 is officially titled, “An Act to Protect the Lives of Unborn Children, and the Health of Pregnant Mothers, by Prohibiting Abortions Except in Cases Where the Mother’s Life or Health Is at Risk, and in Cases of Rape and Incest .”

Yes for Life has opened a campaign to pass Initiative #11. This campaign features pictures of happy babies, a contrast to its losing campaign in 2006 that insisted that “abortion harms women.”

The group currently features endorsements by the American Association of ProLife Obstetricians and Gynecologists (AAPLOG). Dr. Joseph L. DeCook, vice president, writes that “future generations of babies will be saved from death,” although he emphasizes that AAPLOG also opposes abortions done for reasons of rape or incest. Dr. David Stevens, CEO of the Christian Medical and Dental Associations, also endorses the measure, writing, “The child’s right to life trumps the mother’s right to liberty (choice) just like the slave’s right to liberty trumps the slave owner’s right to happiness.”

Others signing on to the campaign include Tony Perkins, president of the Family Research Council; Don Wildmon, president of the American Family Association; J.C. Willke, president of the Life Issues Institute and former president of the National Right to Life Committee; and Frank Pavone, executive director of the group Priests for Life.

The coalition that worked to stop the previous ban, the South Dakota Campaign for Healthy Families, has been addressing Initiative #11 with the motto “South Dakotans Have Had Enough.”

On May 27, South Dakota’s Attorney General Larry Long issued an opinion that the abortion measure would face a constitutional challenge if passed and could be declared in violation of the U.S. Constitution. He noted that the state may be required to pay attorneys fees and costs in any lawsuit.

California
On May 30, California Secretary of State Debra Bowen certified the “Abortion Waiting Period and Parental Notification Initiative” for the November ballot. Also known by its supporters as “Sarah’s Law” the proposal would prohibit a minor from having an abortion until 48 hours after a physician notifies the parents or legal guardian. If parental abuse has been reported, the notification may go to an alternative family member over the age 21. A teen may also go to court to secure a waiver of notice, if the court deems it is in her “best interests.”

A campaign supporting the legislation calls itself “Parent’s Right to Know” and says that the initiative is intended to protect “daughters from sexual predators.” Among the supporters of the campaign are the Christian Medical and Dental Associations, the Center for Biological Reform, Traditional Values Coalition, several Right-to-Life chapters and several crisis pregnancy centers. The name “Sarah" is said to be the pseudonym of a 15-year-old girl from Texas who in the 1990s died after an injury from an abortion that she secured on her own.

Similar parental notification proposals were on the California ballots in 2005 and 2006 but failed to pass by 53-47 percent and 54-46 percent. This campaign, like the earlier ones, is supported by Jim Holman, the publisher of a weekly paper in San Diego, and Don Sebastiani, a winemaker. Together, they contributed $1.8 million to the 2008 ballot measure, according to the San Diego Union newspaper.

By Cynthia Cooper
Posted June 10, 2008

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