Finally, Amendment 48 would ban all abortion, except perhaps in cases of extreme risk to the mother’s life. As a result, the measure would cause permanent injury or death to some at-risk women. It would also force a woman to bring any pregnancy to term, regardless of her judgment about her best course in life.

How frequent is abortion? The Centers for Disease Control reports, “There were 4.1 million births in 2004…”29 The same year, there were 839,226 legal abortions.30 Put another way, there were around five live births for every abortion. The Guttmacher Institute reports for 2005: “In Colorado, 100,500 of the 1,001,833 women of reproductive age became pregnant in 2005. 69% of these pregnancies resulted in live births and 16% in induced abortions.”31 In other words, according to the proponents of Amendment 48, around 16,000 Colorado women murdered their own children in 2005. They should have been arrested, tried, and punished with life in prison or the death penalty.
When in pregnancy do most abortions occur? Viability, the age at which a fetus possibly can survive outside the womb with advanced medical assistance, generally is considered to be around 24 weeks. In 2004 only 12 percent of abortions occurred beyond the twelfth week, and only 1.4 percent of abortions occurred beyond the 20th week.32 Abortion generally takes place in the first trimester, long before the fetus is viable. By granting fertilized eggs the legal status of persons, Amendment 48 would outlaw abortions even in the earliest stages of pregnancy.

Amendment 48 also would outlaw the abortion of severely deformed fetuses without any reasonable hope of a life outside the womb. Although women’s bodies usually naturally abort in such cases, they do not always do so. An article in Boulder Weekly quotes a doctor from Georgia who discusses the devastating effects on parents if abortion is forbidden in such cases:

There were countless couples who got up and told their story [in a legislative hearing in Georgia] about how they had to have an abortion because of a child that was an[en]cephalic [missing most of the brain] or deformed in some terrible way… [T]o think that you have to carry that child, go through the pain of the delivery process and then watch it die…33

Colorado women might be permitted to abort a terminally deformed fetus, depending on the actions of the legislature and courts. However, opponents of abortion could raise effective legal challenges on the basis of the fetus’s right to life, regardless of its physical capacity to survive outside the womb. Under Amendment 48, aborting a deformed fetus would be just as much murder as killing a deformed infant. Thus painful family decisions would become political spectacles for anti-abortion activists under the false banner of “protecting life,” just as happened in the Terri Schiavo case.

By defining a fertilized egg as a person, Amendment 48 would outlaw abortion for pregnancies resulting from rape and incest. Whether the fertilized egg was created in an act of consensual love or brutal force would not impact its legal rights. Without the morning-after pill to protect themselves from pregnancy, brutalized girls and women might be forced to endure an inescapable reminder of their attack for nine months thereafter, if not longer. Indeed, Colorado Right to Life asked candidates whether they “agree that abortion is always wrong, even when the baby’s father is a criminal (a rapist).” Seventeen Republican candidates answered yes.34

Would abortion be permitted to protect the life and health of the pregnant woman under Amendment 48? The answer is unclear.
Thankfully, modern medicine makes pregnancy relatively safe. The Centers for Disease Control reports, “The risk of death from complications of pregnancy has decreased approximately 99% during the twentieth century, from approximately 850 maternal deaths per 100,000 live births in 1900 to 7.5 in 1982. However, since 1982, no further decrease has occurred in maternal mortality in the United States.” The report notes that most women who die from pregnancy die during live birth.35 By way of comparison, the Guttmacher Institute notes, “Fewer than 0.5% of women obtaining abortions experience a complication, and the risk of death associated with abortion is about one-tenth that associated with childbirth.”36

However, pregnancy can risk a woman’s life in rare cases. Ectopic pregnancy, for instance, in which a fertilized egg develops outside of the uterus, occurs in about two percent of all pregnancies: without medical intervention, it often proves fatal.37 The risks to women of an abortion ban in such cases is illustrated by recent events in Nicaragua. Human Rights Watch reports that the abortion ban in that country discouraged hospitals and doctors from administering abortions even in medical emergencies, for fear of prosecution. In response, the government tried to force doctors to provide emergency care: “In an attempt to mitigate the consequences of the ban, the Nicaraguan Health Ministry in December 2006 issued a number of mandatory protocols for the provision of emergency obstetric care.” Yet even such measures were insufficient to prevent the needless deaths of pregnant women.38 Even though Nicaragua’s abortion ban permits medical intervention in cases of an ectopic pregnancy, the Associated Press recounted the story of one women with an ectopic pregnancy who died because doctors refused to treat her, apparently out of fear of prosecution.39

Most people properly recoil in horror at the thought of forcing a woman with a high-risk pregnancy to continue that pregnancy at the cost of her life. Is that really what Amendment 48 would require?

Many supporters of Amendment 48 do not imagine that it would outlaw absolutely all abortions. Polling data suggest that the overwhelming majority of Americans believe abortion should be legal in at least some cases. Only about 15 percent of Americans think that abortion always should be illegal, and multiple polls over multiple years never show that view climbing above 22 percent.40 Yet 35 percent of Colorado voters polled said they support Amendment 48.41 What explains this disparity?

One plausible explanation is that some supporters of Amendment 48 hold the common view that the life of the mother must be weighed against the life of the embryo or fetus. On this approach, if the life of the mother were seriously threatened, abortion should be permitted by law. (Still, doctors might not be willing to perform such abortions, as they would be risking investigation and prosecution by zealous police officers and prosecutors.) However, Amendment 48 does not endorse that approach of balancing the two lives. Instead, the legislature and courts would be required to decide the nature and extent of risks that a woman should be forced to bear for an embryo or fetus. No one can know in advance what they might decide. However, we can form some idea of what the supporters of Amendment 48 want.

Colorado Right to Life rejects the idea that the risks to the mother should be weighed against the life of the fetus, except perhaps if the mother is on death’s door. They asked candidates in 2008 whether they “support the 2008 Colorado Personhood amendment effort to define ‘person’ to include any human being from the moment of fertilization.” The organization seeks to “uphold the God-given, inalienable Right to Life for the unborn,” and it holds “that abortion is always wrong…” Does that still apply when a woman’s life is at risk? Colorado Right to Life states:

When the mother’s life is seriously threatened by a pregnancy, of course it is morally justified to deliver the baby but not if the intention is to kill the baby. When the life of the mother is at serious risk by her pregnancy, the goal must be to save the life of the mother and the baby if at all possible. It is just as wrong to kill the mother to save the baby, as it is to kill the baby to save the mother. “Legalizing” abortion, defined as the intentional killing of the unborn child, for the life of the mother leads to repugnant acts like emergency removal of late-term babies from the womb stopping midway in the procedure to kill the baby. If the baby dies, it is a tragedy; if the baby is intentionally killed, it is murder. If necessary to save the mom’s life, the unborn baby could be delivered with the determination to care for both, and if possible, to save both the baby and mother!42

Colorado Right to Life’s position rests on the farce that doctors could “deliver” an ectopic embryo or pre-viable fetus without “intentionally killing” it. Semantic contortions aside, if Colorado Right to Life is prepared to allow doctors to “deliver” an embryo to its death, then it favors abortions in cases of “serious” threats to the woman’s life. And how are doctors to know which threat is sufficiently “serious?” Colorado Right to Life does not say, and Amendment 48 leaves the matter to be decided by the legislature, prosecutors, and the courts.
Ominously, even ectopic pregnancies may not be operable under Amendment 48. Pamela White, a critic of Amendment 48, offers the following scenario:

A couple who thought they were expecting a baby rush to the hospital, the wife doubled over in agony. An ultrasound shows that the fetus isn’t in her uterus, but is implanted in one of her fallopian tubes. The pregnancy is doomed, and the woman’s life is in very real danger.

Rather than terminating the pregnancy immediately, however, doctors admit the wife and let her wait out the agony, watching for the fetus’s heart to stop beating-or for the wife’s fallopian tube to rupture. Then they will have no choice but to operate if they hope to save the wife’s life.43

Lest White be accused of sensationalism, the Association of Prolife Physicians advocates just such a policy:

We must respond to all tragic circumstances of pregnancy from the unshakeable foundation of two indisputable premises: human life begins at conception, and it is always wrong to intentionally kill an innocent human being. The unborn child’s right to life and liberty is given by his or her Creator, not by his or her parents or by the state. … It is never right to intentionally kill an innocent person, even if it does relieve another’s emotional or physical suffering. …

What is rarely realized is that there are several cases in the medical literature where abdominal ectopic pregnancies have survived! There are no cases of ectopic pregnancies in a fallopian tube surviving, but several large studies have confirmed that time and patience will allow for spontaneous regression of the tubal ectopic pregnancy the vast majority of the time. So chemical or surgical removal of an ectopic pregnancy is not always necessary to save the mother’s life after all.

However, if through careful follow-up it is determined that the ectopic pregnancy does not spontaneously resolve and the mother’s symptoms worsen, surgery may become necessary to save the mother’s life. The procedure to remove the ectopic pregnancy may not kill the unborn child at all, because the unborn child has likely already deceased by the time surgery because necessary. But even if not, the procedure is necessary to save the mother’s life, and the death of the unborn baby is unavoidable and unintentional.44

While some advocates of Amendment 48 apparently would allow some abortions at some undefined threshold of risk to the woman’s life, all of them would forbid abortions below some threshold of risk. Ultimately, legislators and judges would determine when abortion to preserve the life and health of the mother would be justifiable homicide rather than murder. Yet due to the inherent uncertainty of these emergency medical situations, no bright line could be drawn. So a woman suffering from an ectopic pregnancy might only be able to hope that a judge would rule in her favor in an emergency hearing before her condition deteriorated too far for a surgeon to save her life. She may not have much time to spare.

The inevitable result of Amendment 48 is that some women would die unnecessarily due to its ban on abortion. The only unresolved question is how many.

Originally published by the Coalition for Secular Government. The Coalition advocates government solely based on secular principles of individual rights. The protection of a person’s basic rights to life, liberty, property, and the pursuit of happiness — including freedom of religion and conscience — requires a strict separation of church and state.

Amendment 48 Is Anti-Life

Notes

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Ari Armstrong and Diana Hsieh

Ari Armstrong writes for FreeColorado.com, AriArmstrong.com, and Grand Junction's Free Press. He is the author of Values of Harry Potter. Diana Hsieh is the founder of the Coalition for Secular Government and a doctoral candidate in philosophy at the University of Colorado, Boulder. She also blogs at NoodleFood.