Would Personhood Measure Amendment 67 Ban In Vitro Fertilization?

If you ask those in favor of Amendment 67 and those opposed to it what it would do, you'll get very different answers. Opponents say it would ban abortion. Supporters say that's not the point. The point, they say, is to make it so unborn babies are treated the same as people in the Colorado criminal code. In other words, if you kill an unborn baby, you could be charged with homicide in the same way you might be if you killed an adult.

But would those protections extend to fertilized eggs that don't actually become babies? And if so, does that mean Amendment 67 would affect in vitro fertilization?

See also: Personhood USA Pushes Amendment 67, Redefinition of "Person" and "Child"

Again, the sides disagree.

Cara DeGette, the spokeswoman for the Vote No 67 campaign, says that if voters pass Amendment 67, all fertilized eggs would be considered "persons" under Colorado law. That would include any eggs that are fertilized but not implanted as part of the process of in vitro fertilization. Sometimes, she says, those unused fertilized eggs are discarded.

"Under Amendment 67, those fertilized eggs are considered persons in the Colorado criminal code, so destroying them would be murder," DeGette says. "So therefore, in vitro fertilization would not be available."

Jennifer Mason, a spokeswoman for the pro-67 camp, says that's untrue. "The claim is ludicrous," she says. Discarding embryos is not a required part of in vitro fertilization, Mason says; for example, those unused fertilized eggs, which are often frozen for preservation, can be adopted by infertile couples. Plus, she says, no part of the Colorado criminal code prohibits destroying frozen embryos. "It would have to be a crime to destroy them for Amendment 67 to apply," she says. "And as far as I know, it's not."

When pressed, however, Mason says it "would likely require additional legislation to allow the destroying of embryos" if Amendment 67 were to pass. But she reiterates that in vitro fertilization would remain legal no matter what.

The actual text of Amendment 67 doesn't mention frozen embroys or abortion or birth control or any of the hot-button issues that have come up in the debate surrounding it. The question that will appear on November's ballot is as follows:
Shall there be an amendment to the Colorado constitution protecting pregnant women and unborn children by defining "person" and "child" in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings?
Nancy Ehrenreich, a University of Denver law professor who specializes in reproductive rights, says it's difficult to tell how Amendment 67 would be interpreted. The term "unborn human being" is not one that the state courts have defined, she says.Therefore, it would be up to state prosecutors to decide whether to bring criminal charges against people who destroy embryos or perform abortions -- or even against women who have miscarriages.

"Like with all criminal statutes, it depends on how prosecutors and judges interpret their meaning," Ehrenreich says. When a law is unclear, she says, it "gives a lot of discretion to prosecutors, and that makes it hard for us to predict how it would be used."

Continue for more of our post about the latest Personhood measure. The groups backing Amendment 67 include Personhood USA, Colorado Right to Life and an organization called A Voice for Brady. The last organization was founded after a Longmont woman named Heather Surovik lost her unborn son, whom she'd already named Brady, as the result of a car accident in 2012. Surovik was eight months pregnant. The other driver, who was drunk, was not charged with vehicular homicide.

In 2013, state lawmakers passed a bill aimed at addressing situations such as Surovik's. The Crimes Against Pregnant Women Act made it illegal to terminate a woman's pregnancy as a result of "reckless or careless" conduct, such as drunk driving. However, the new law exempts health care providers. It also makes clear that nothing within the law is meant to "confer the status of 'person' upon a human embryo."

Mason says that law doesn't go far enough. "If there's no person, there's no victim," she says. Under the Crimes Against Pregnant Women Act, causing the unlawful termination of a woman's pregnancy while driving under the influence is a class 4 felony, which is punishable by up to six years in prison. Vehicular homicide while under the influence is a class 3 felony, punishable by up to twelve years in prison.

DeGette says that while Surovik's story is tragic, Amendment 67 is too broad. "It's tricky because its designed to make voters think, 'Of course we all want to protect pregnant women. Who doesn't?'" she says. "But when you look at the applications, then you see that it's a lot of potential criminalization of women and their doctors."

Plus, DeGette is not convinced that the pro-67 campaign is being completely transparent about its motives. "The intent is to ban all abortion," she argues.

Mason says that's not true. "They make it all about abortion, but it's not all about abortion," she says. "It's about something so much bigger than that."

However, asked whether Amendment 67 would ban abortion, Mason says, "It's definitely possible that this could be used that way."

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