For decades, pro-lifers have fought Roe v. Wade head-on, hoping to persuade the U.S. Supreme Court to reverse its 1973 decision.
While state laws have steadily chipped away at the right to an abortion, a national change of heart hasn't materialized. So now, the most strident pro-lifers are looking for what they believe is a loophole in Roe: "personhood," the redefinition of the unborn, at any stage of development, as legal people.
Personhood has been tried unsuccessfully in several states, including Colorado, where it failed by 3-to-1 margins in 2008 and 2010. Amendment 67, a tweaked version, is on the Colorado ballot this year.
While personhood hasn't been successful in its main goal, it has hit pro-choice folks in the pocketbook. Colorado's No On Personhood issue committee raised nearly $2.4 million for its 2008 and '10 campaigns, and it's collected $1.2 million for this election.
Interestingly, personhood doesn't break along typical political lines. El Paso County Republicans executive director Daniel Cole says he hasn't heard from any local candidates who want to publicly support the measure. Cory Gardner, Republican candidate for the U.S. Senate, has been a personhood supporter, but says he doesn't back Amendment 67.
Cole says that he personally thinks that personhood is "terrible politics." It loses every time it runs in Colorado, he notes, and it's difficult to get behind because it would ban certain popular forms of birth control. Some experts say it would do far more: turn any pregnant woman who fails to deliver a healthy baby into a crime suspect.
All of which might lead a reasonable person to suspect that Amendment 67 will go down in flames come Nov. 4. But in a Sept. 26 email, Planned Parenthood Votes Colorado said its polling showed 67 passing.
Here's why: Although 67 also redefines the unborn as people, this time in the criminal code, supporters have sold this bill as something more popular, a law intended to create penalties for forcibly causing a woman to miscarry.
Lynn Paltrow, president of the National Advocates for Pregnant Women and a civil rights lawyer, says that if 67 was added to the Colorado constitution, lawmakers couldn't alter its language to narrow its wide-ranging consequences. "Passing it would be devastating," she says. "It would be Colorado saying that we are removing pregnant women from the protections of the state's constitution."
Consider: If a pregnant woman has an abortion, and a fetus is a "person," is she committing first-degree murder? If she smokes a cigarette, is that child abuse? If she opts for a natural birth when her doctor recommends a C-section, and the baby is stillborn, is that manslaughter? If she moves to another state against the father's wishes, is she kidnapping the fetus?
Paltrow says the way Amendment 67 is written, the answer to all these questions is likely yes. Similar but less broad laws in other states have already led to the arrest and harassment of pregnant women. She's collected hundreds of examples, including:
• In 2004, Melissa Ann Rowland was charged with murder in Utah after one of her twins was stillborn. Doctors had advised her to get a C-section, saying the babies could die if she did not, but she refused. She eventually got 18 months' probation for lesser counts of child endangerment.
• In 2009, Samantha Burton showed signs of premature labor at 25 weeks pregnant. Her doctor found her not to be in labor, but refused to allow Burton to leave a Florida hospital for a second opinion, and got a court order requiring Burton to undergo all medical procedures the doctor advised. The baby, which was removed by C-section days later, was stillborn. A higher court later ruled Burton's rights were violated.
• In 2010, Christine Taylor fell down the stairs after apparently feeling lightheaded. After confiding in a nurse that she had considered abortion at one point in her pregnancy, she was arrested for attempted feticide.
In July 2012, Heather Surovik was eight months pregnant with a son she called Brady when a drunk driver smashed into her car. When Surovik regained consciousness, she was told her unborn son was dead. The driver would face many charges, but none for Brady's death, because Colorado law provided no protections for him.
Surovik is the inspiration for Amendment 67, sometimes called "Brady's Law." But there have already been laws passed for cases like Brady's. Rep. Mike Foote was running for election at the time of Surovik's crash. Moved by the story, he introduced and passed criminal penalties for forced miscarriages in 2013, and civil penalties in 2014.
"Amendment 67 claims to fill a loophole," he says, "but it's a loophole that doesn't exist."
Heather Surovik apparently disagrees. She didn't like Foote's legislation because it didn't recognize a fetus as a person — the crimes it created were against the pregnant woman.
Jennifer Mason, communications director for Personhood USA, says unborn children deserve to be protected by criminal law. But she doesn't think Amendment 67 would have the impacts Paltrow points to. Mason says Personhood USA has talked to experts who've said there is no way that women who have miscarriages will be prosecuted.
"Some of those outrageous claims that they make, those are just scare tactics," she says. "Miscarriage is not a crime."
Asked if she thinks 67 would outlaw abortion, which also isn't a crime, Mason says she isn't sure. But, she says, she wouldn't object if it did.