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Amendment 48 Is Anti-Life: Personhood and the Right to Abortion (Part 5 of 6)

Amendment 48, if fully implemented, would outlaw all or nearly all abortions involving concerns of health, and definitely all abortions for rape, incest, and other reasons. That result would be disastrous for the men and women of Colorado. So what should Colorado’s abortion policy be instead? What laws would be consistent with individual rights?

Some common reasons given for keeping abortion legal are inadequate or misguided. For example, one standard claim is that an abortion ban would force women to obtain illegal abortions, thereby risking their lives and health. The real-life effects of an abortion ban are significant: while the number of deaths related to illegal abortions were fewer than often claimed, they did occur.45 However, if a fertilized egg truly has the moral status of a person, then abortion should be outlawed as a morally abhorrent violation of fundamental rights. The fact that some women might hurt themselves while committing murder would be irrelevant: we should pity the victim, not the perpetrator. Likewise, it would be bizarre to legalize assault to prevent perpetrators of that crime from injuring themselves. In other words, the problems of illegal abortion become relevant only if abortion is in fact a woman’s right, rather than murder.

Similarly, the NO on Amendment 48 Campaign, organized by the “Protect Families Protect Choices” coalition, offers as its tag line, “It Simply Goes Too Far.” But how far is too far? That’s unclear. The statement suggests that some restrictions on abortion would be acceptable. Perhaps the embryo or fetus should be granted some legal rights at some point in its development. Perhaps abortions should be permitted only in cases of rape, incest, deformity, or risk to the life of the woman. Yet surely coalition members like NARAL Pro-Choice Colorado and Planned Parenthood of the Rocky Mountains would oppose such restrictions on abortion.46 By claiming that Amendment 48 “simply goes too far,” the NO on Amendment 48 Campaign dodges the fundamental questions about the right to abortion, vaguely suggesting that some limits should exist without saying what or why.

In fact, Amendment 48 is not wrong because it is too extreme. It is wrong because its basic premise that fertilized eggs, embryos, and fetuses are human persons deserving of full legal rights is contradicted by the facts.

The central question raised by Amendment 48 is whether a fertilized egg has the same moral standing as an infant. Why do the advocates of Amendment 48 think that it does?

Colorado for Equal Rights, the group behind Amendment 48, states, “This issue is a matter of conscience and it is a matter of truth—the truth that is placed within each of our hearts by God—the truth that all men are CREATED equal. Not just born equal, but CREATED equal…”47 Similarly, Colorado Right to Life holds that a fertilized egg has a “God-given” right to life.48 The appeal to God’s will is common to all public advocates of Amendment 48. They believe that they have a mandate from God to outlaw abortion because God condemns it as murder. Kristi Burton, the public face of the Amendment 48 campaign, explained her reason for fighting to ban abortion: “It just came to me. I prayed about it and knew God was calling me to do it.”49 Amendment 48 is thus a prime example of faith-based politics: it is a blatant attempt to force everyone to conform to the dictates of a particular religious creed. While the passage of Amendment 48 would not constitute an “establishment of religion” in the sense of creating a state-sponsored church, it would establish sectarian religious doctrine as law. Thus it would violate the First Amendment, which Thomas Jefferson lauded as “building a wall of separation between Church and State.”50

However, Colorado for Equal Rights also claims to have science and medical evidence on its side. The group claims, “Because of breakthroughs in science, we know that from the moment of fertilization a unique human comes into existence.”51 Burton claims, “Science clearly proves that life begins at the time of fertilization. We are secure in the fact that we have science and reason on our side…”52 Is that right? No one doubts that a fertilized egg is alive, that it contains human DNA, or that it has the potential to develop into a born person (assuming it implants and develops properly in a woman’s uterus). The fundamental question is whether these facts are sufficient to establish a fertilized egg as the moral equivalent of an infant, worthy of full legal protections. Beyond their faith-based claims about God-given rights, the advocates of Amendment 48 offer not a single argument bridging that gap.

Establishing a fertilized egg as “life” takes the debate nowhere. Burton is wrong when she claims that “life begins at the time of fertilization.” Both the sperm and the egg are already alive prior to fertilization, so life precedes fertilization. Yet we do not regard every sperm (and egg) as sacred, as in the classic Monty Python sketch. In general, the fact that something is alive is not sufficient to give it the moral status of a person: animals and plants are alive, yet they are not persons. Nor is the fact that something is human and alive sufficient to make it a person. Every cell in our body is both human and alive, yet we don’t worry about giving blood for testing or scraping off a few skin cells in a fall. Also, a cancer is a distinct, human, living entity that we try very hard to kill. A fertilized egg is different from those other living things because, in addition to being alive and human, it might develop into a born baby given the right conditions. Nobody disputes this fact. What opponents of abortion fail to establish, however, is that a potential baby has the moral status of an actual baby.

In fact, the advocates of Amendment 48 depend on an equivocation on “human being” to make their case. A fertilized egg is human, in the sense that it contains human DNA. It is also a “being,” in the sense that it is an entity. That’s also true of a gallbladder: it is human and it is an entity. Yet that doesn’t make your gallbladder a human person with the right to life. Similarly, the fact that an embryo is biologically a human entity is not grounds for claiming that it’s a human person with a right to life. Calling a fertilized egg a “human being” is word-play intended to obscure the vast biological differences between a fertilized egg traveling down a woman’s fallopian tube and a born infant sleeping in a crib. It is intended to obscure the fact that anti-abortion crusaders base their views on scripture and authority, not science.
So is a fertilized egg, embryo, or fetus a person with a right to life, like an infant? No. To see why not, we must compare its basic nature as it develops through pregnancy to that of a born infant.53

From the moment of fertilization to its implantation in the womb a few days later, the embryo consists of a few largely undifferentiated cells. It is invisible to the naked eye. It has no human organs, and no human form. It has no brain, and so no capacity for awareness or feelings. It is far more similar to a few skin cells than an infant. Moreover, it cannot develop into a baby on its own: its survival beyond a few days requires successful implantation in the lining of the woman’s uterus. If it fails to do that, it will be flushed from her body without anyone ever knowing of its existence.

If the embryo matures normally after implanting into the lining of the uterus, it gradually develops primitive organs. Yet its form is not distinctively human in the early stages: it looks very similar to the embryo of other species.54 As it develops its distinctive human form, the fetus remains wholly dependent on the woman for its survival. Even with the most advanced medical technology, many fetuses born in the 22nd to 25th week of pregnancy will die, and many of those that survive will suffer from “some degree of life long disability, ranging from minor hearing loss to blindness, to cerebral palsy, to profound intellectual disability.”55 So before viability, the fetus is not capable of an existence independent of the pregnant woman.

After 26 weeks, when a fetus would be viable outside the womb, its organs continue to mature in ways critical to its survival and well-being after birth. It is aware, but that awareness is limited to the world inside the womb. Most importantly, however, so long as the fetus remains within the woman, it is wholly dependent on her for its basic life-functions. It goes where she goes, eats what she eats, and breathes what she breathes. It lives as she lives, as an extension of her body. It is wholly contained within and dependent on her for its survival. So if the woman dies, the fetus will die too unless delivered quickly. The same is true if the fetus’s life-line to her body is disrupted, such as when the umbilical cord forms a tight knot.56 A fetus cannot act independently to sustain its life, not even on the basic biological level possible to a day-old infant. It is thoroughly dependent on the woman in which it lives.

That situation changes radically at birth. A baby lives his own life, outside his mother. Although still very needy, he maintains his own biological functions. He breathes his own air, digests his own food, and moves on his own. He interacts with other people as a whole and distinct creature in his own right, not merely as a part of a pregnant woman. He can leave his mother, either temporarily or permanently, to be cared for by someone else. He has a life of his own that must be protected as a matter of right, just the same as every other person. That’s why the killing of a just-born infant is immoral—and properly forbidden by law. However, while just a fetus within the woman, the only person with rights is the woman.

The fundamental biological differences between a fertilized egg, embryo, or fetus versus an infant show that a woman has every right to terminate an unwanted pregnancy—for any reason. The pregnant woman is a human person with the right to life, liberty, and the pursuit of happiness. So is an infant. However, neither a fertilized egg, nor an embryo, nor a fetus is a person. It has no right to life-support from the woman. For the state to force a woman to provide such life-support under penalty of law would be a gross violation of her rights. Yet that’s precisely what Amendment 48 would do—based on the fantasy that a fertilized egg has the same moral standing as an infant.
Of course, when a woman wants to bear a child, she will value her fetus tremendously. She will do all she can to ensure the birth of a healthy baby, protecting it from myriad harms. Moreover, she has every right to expect that the police and courts will protect her and her fetus from criminal assault. Indeed, the law should severely punish criminals who intentionally harm a woman and her fetus. However, the only rational basis for such laws is the woman’s rights to her own body—not any false rights attributed to the fetus. Just as the fetus depends on the woman’s body for its survival, so it depends on the woman’s rights for its legal protections.

In short, the premise of Amendment 48 is completely contradicted by the biological facts. A fertilized egg is not a person; it has no right to life. The advocates of Amendment 48 do not offer any rational grounds to think otherwise. Their whole case rests on God’s alleged commands in a few often-quoted passages of Christian scripture. However, respect for the facts of reality requires respecting a woman’s right to terminate an unwanted pregnancy. She must be free to act according to her own best judgment concerning the requirements of her life and happiness, regardless of anyone else’s religious beliefs.

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

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