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|July 31-August 6, 2008
An in-depth look at the implications of Amendment 48
by Pamela White
A young woman arrives in the emergency room with pelvic pain and heavy bleeding. A doctor examines her and realizes the woman is in the midst of miscarriage. Rather than focusing on her treatment, however, the doctor calls in a specialist — a forensic gynecologist — who will examine the young woman whether she consents or not in order to determine whether the miscarriage was natural or whether her uterus is a crime scene.
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.
A college student moves to Boulder to attend the University of Colorado. She heads to the pharmacy to pick up her month’s supply of birth-control pills, only to have her prescription seized by the pharmacist, who apologetically informs her that all kinds of hormonal contraception are now illegal in this state.
Welcome to the new world of Amendment 48.
If voters pass Amendment 48 in November, the Colorado Constitution will be changed so that even a pronuclear embryo — a single-celled, newly fertilized human egg — will have the same rights and protections as a fully developed, living, breathing human being. The so-called “Personhood Amendment,” an initiative placed on the ballot by anti-abortion extremists, would impact not only abortion, experts say, but also a broad range of issues pertaining to women’s health from access to contraception to infertility treatment to the flexibility doctors have in treating pregnant women.
Proponents of the amendment, backed by a host of fundamentalist anti-abortion and anti-contraception groups, admit they hope to use the initiative to achieve their ultimate goal of overturning Roe v. Wade and ending access to hormonal contraception. But they’re quick to dismiss concerns from doctors about the potential impact that such a drastic constitutional amendment would have on women’s lives.
The fact remains, however, that Colorado would be the only state in the nation to have such an extreme reproductive measure in its constitution. In fact, Colorado would become only the fourth place in the world to define “life” as beginning with fertilization. Those other places — the heavily Catholic countries of El Salvador, Nicaragua and Chile — see scenarios unfold like those described above every day with devastating impacts on women.
Biology and politics
In the late 1670s, Dutch scientist Antoni van Leeuwenhoek looked at semen under a microscope and made a stunning discovery — tiny swimming things that each had an itsy-bitsy baby, or animalcule as he called it, inside. Human life, he announced, has nothing to with the mysteries of the female womb, but from the potency of a man’s life-giving semen. The woman’s womb was simply a field in which a man’s seed could grow.
Today, we know that van Leeuwenhoek erred in formulating his conclusion; sperm contain chromosomes, not microscopic babies. But the issue of when life begins still causes heated debate. Even the issue of what constitutes a pregnancy seems to be up for discussion. It’s not that we have insufficient science; it’s that the topic has become politically charged.
Here is quick review of female biology:
When a woman reaches puberty, her ovaries begin releasing a single ripe ovum or two each month. The single cell travels along one of her fallopian tubes toward her uterus. If sperm cells reach the egg while it is still viable, one of them might penetrate the egg, fertilizing it and causing it to begin to divide. Sometimes, the fertilized egg implants in the lining of the uterus and begins to develop, and the woman is considered to be pregnant.
But about 30 to 70 percent of the time, the fertilized egg fails to implant and is flushed from the woman’s body during her next menstrual period without her ever knowing about it. This is not considered a miscarriage because the egg never implanted and never initiated the physical changes of pregnancy.
Controversy creeps in when women try to take advantage of their complex reproductive cycle to prevent pregnancy.
Those who don’t want to have children have many options, ranging from barrier methods (condoms, diaphragms, sponges) to spermicides to intrauterine devices (IUDs) to hormonal birth control, like the pill, Depo-Provera and the NuvaRing.
IUDs make the uterine lining hostile to fertilized eggs, preventing them from implanting and thus halting a pregnancy before it can begin.
Hormonal birth control works to prevent pregnancy in three ways: by preventing ovulation from occurring; by making the mucus in a woman’s cervix hostile to sperm; and by preventing the implantation of a fertilized egg, should a woman have “break-though” ovulation. The fertilized egg is simply flushed unnoticed from the woman’s body like so many others.
In this case, most doctors say that no miscarriage or abortion has occurred because the fertilized egg hadn’t implanted and therefore the woman wasn’t yet pregnant.
But some conservative Christians, both Catholic and Protestant, consider IUDs and hormonal birth control to be abortifacients because they can prevent a fertilized egg from implanting. For them, “conception” is the moment of fertilization, not the successful implantation of an embryo. In their view, anything that interferes with that embryo’s implantation isn’t contraception; it’s abortion.
By adopting this concept of “life,” Amendment 48 is the Holy Grail for those who oppose both birth control and abortion because it would render both illegal by giving full rights to an egg from the moment it is fertilized, setting up direct challenge not only to Roe v. Wade but also to the lesser known Supreme Court ruling that legalized contraception in 1965.
With Bush’s conservative Supreme Court in place, fundamentalists hope to overturn Roe v. Wade entirely with one stroke of the gavel, rather than chipping away at abortion rights as they have been doing.
Mark Hotaling, executive director of the Christian Coalition of Colorado, openly acknowledges this and applauds it.
“Make no mistake,” Hotaling told the Denver Post last May. “Come November, Colorado will be ground zero for the pro-life movement.”
Amendment 48 amounts to a voter shootout between those who believe that a fertilized egg is a person and deserves to be born no matter what circumstances the woman may be facing and those who believe a woman must have a right to decide what happens inside her own body if she is to retain her own human dignity.
Laws and consequences
Kristi Burton, 20, a resident of Peyton, Colo., is the public face of Amendment 48. Burton told the press that the idea of fighting for the unborn came to her when she was sick in bed at the age of 13.
“Me and a lot of my friends want to do what we can to create a culture of life,” she says, using the oft-repeated favorite phrase of fundamentalist Christians.
Burton claims she hasn’t really thought about the implications of the proposed constitutional change and is happy to leave the fallout to the courts. She also says she sees a future for herself in public policy.
If her interest in public policy should one day include considering the impact of the policies she hopes to enact, she could study the emerging situation in Nicaragua, where in November 2006 the conservative government banned all abortions for all reasons, including rape, incest and the life and health of the mother. Prior to this change, a woman could have a therapeutic abortion if her life or health were in danger or if the fetus were malformed in such a way that it would not live after birth.
But now any doctor who performs an abortion for those reasons can be sent to prison. Likewise, a woman who has an abortion, even to protect her health, can also be prosecuted and sent to prison.
According to Human Rights Watch, an international nonprofit organization that has studied the situation in Nicaragua, the law has resulted in an increase in preventable women’s deaths from causes related to pregnancy. The organization’s findings were published in October 2007 in a report titled “Over Their Dead Bodies.”
“Although it appears that actual prosecutions are rare,” the report states, “the ban has very real consequences that fall into three main categories: denial of access to life- or health-saving abortion services; denial or delay in access to other obstetric emergency care; and a pronounced fear of seeking treatment for obstetrical emergencies. The net result has been avoidable deaths.”
The report details instances in which doctors have hesitated to treat women suffering from ectopic pregnancies, uterine hemorrhaging or even life-threatening cancers because doing so would either terminate her pregnancy or put it at risk, thus leaving both doctor and hospital vulnerable to prosecution.
Though the Nicaraguan Health Ministry issued a number of mandatory protocols regarding obstetrical emergencies hoping to address the unforeseen consequences of the blanket abortion ban, many hospitals are still hesitant to enact them for fear that the protocols are still open to interpretation. So, although the ministry calls for immediate termination of ectopic pregnancies, Human Rights Watch documented cases in which women died of ectopic pregnancies that went untreated due to the hospital’s or doctor’s fear of prosecution.
The report also documents a very real fear among women who miscarry naturally that they will be accused of having an abortion if they seek medical treatment. Again, women have died.
And yet, for all of this, the law hasn’t stopped women from seeking abortions. As the report further documents, the law has simply resulted in more women dying from the procedure.
Women are suffering in other ways, as well. Before the ban was in place, a woman found to be pregnant with a badly deformed, nonviable fetus — a fetus afflicted with congenital deformities such as anacephaly (missing most of the brain) or trisomy-18 (a complex of deformities incompatible with life) — could terminate her pregnancy. Now, she is required to carry the pregnancy to term and endure labor on behalf of a fetus that cannot possibly survive for long outside her uterus.
“To make a woman who knows that she has an anacephalic child in her womb carry it to term and make her suffer though giving birth — a patient who sees her child born with those problems suffers devastating psychological consequences,” an obstetrician from a major hospital in Managua told Human Rights Watch. “What we normally do when there are malformations incompatible with life is to terminate the pregnancy when we detect it. But now, according to the law, it cannot be done. We have encountered various cases of young girls whose pregnancies we could not terminate; so we told her... that she has a pregnancy, that the baby is not going to live, and that it will die when it is born. But we can only explain; there is nothing we can do.”
A lack of compassion
Although it’s hard to imagine the American public, even anti-abortion extremists, tolerating the medical neglect of women in the name of protecting life, there are those in the United States who would use the force of law to ensure that women give birth to badly deformed, doomed babies rather than aborting them.
Dr. Andrew Toledo, an OB/GYN and reproductive endocrinologist who practices in Georgia, listened to such people testify in a subcommittee hearing regarding a referendum that anti-abortion extremists hoped to get onto his state’s ballot. The referendum, like Amendment 48, would also have protected life from the moment of fertilization.
“There were countless couples who got up and told their story about how they had to have an abortion because of a child that was anacephalic or deformed in some terrible way,” Toledo says. “It didn’t move these people at all. They didn’t care. They just didn’t care. It didn’t matter if the woman was raped. It didn’t matter if it was incest. It didn’t matter if the girl was under age.”
For Toledo, who helps couples facing infertility problems to have the children they so desperately want, this lack of compassion was chilling.
“If the child is not going to survive, it’s bad enough that the woman’s having to carry this inside of her,” he says. “Knowing what women go through to have this wonderful event occur only to be told that you’ve got a child that’s not going to survive birth, and then to think that you have to carry that child, go through the pain of the delivery process and then watch it die…”
Such an experience would be devastating for most women, he says, adding that he fully supports any woman who wants to carry a nonviable fetus to term, if that’s her choice.
In addition to listening to the testimony of others, Toledo spoke before the subcommittee about the possible impact of Georgia’s proposed referendum on women’s health and on couples undergoing in vitro fertilization (IVF) for infertility.
“Where do you start?” he asks. “First of all any form of [hormonal] contraception would be considered criminal. The family-planning person would be considered a criminal because you are killing potentially a person because the embryo is not being allowed to implant. There are so many aspects of this that are just horrific.”
A father of three, Toledo says he believes life is sacred, but he also believes that the health and lives of women need to come first. Laws such as Amendment 48 trivialize women, in his opinion.
“What they’re asking people to do is pass laws saying that these fertilized eggs are equal to a woman in every way,” he says. “Here’s the key element that they’re forgetting from my perspective: Hey, those embryos still need a uterus. No uterus, no baby.”
As an IVF specialist, he wonders how Amendment 48 would impact IVF clinics in Colorado.
“You have to deal with those little embryos in the deep freeze if you’re an in vitro fertilization center. What do you do with them if the couple doesn’t want to use them?” he asks. “Are you going to assign them to the state? Are you going to give them up for adoption and therefore the couple loses their rights to utilize them or dispose of them in whatever way they want?”
He says he sees couples agonize over what to do with their embryos, doing their best to make the right decision. Most keep them for later use.Others donate them to other infertile couples who can’t afford the full in-vitro process. Still others donate them to research. And some have them destroyed.
“Those are decisions that are very difficult to make but should be made by the couple, not by the government,” he says. “When the government gets involved in those decisions, we are stepping into a huge mess.”
Of course, some of the implications of Amendment 48 are absurd. If a fertilized egg is a person, how should society respond to the millions of “persons” who fail to implant inside the uterus and go unnoticed as part of women’s menstrual flow? Is every menstrual period a reason to mourn?
“I have 10,000 frozen embryos in my lab,” Toledo says. “I told the subcommittee that, according to the referendum, that would constitute a small city. I asked if my small city gets voting rights. If I put them in my car, do I get to ride in the HOV lane? There are so many offshoots of this that are so illogical. It’s just insane.”
An unbelievable violation
David Grimsland, associate director of sales at Boulder Weekly, has in vitro triplets with his wife, Irina, who lost both fallopian tubes to several painful but natural ectopic pregnancies.
With the triplets now more manageable at age 3, the two recently decided to have their remaining two embryos implanted, not for religious reasons, but rather to give them the same chance that their other embryos were given.
Although Irina did not become pregnant this time, Grimsland says the two of them are satisfied with their decision and cannot fathom having to make such choices with government interference.
He views any attempt to prohibit couples from using IVF or to regulate what a couple can do with their embryos as “an unbelievable violation of rights.”
“Just like a woman has a right to decide what happens inside her body, a couple has a right to use science to have children,” he says. “It’s unbelievable that any movement like this could get any traction.”
If Amendment 48 has traction in Colorado, it’s due in part to out-of-state funding and legal support.
Kristi Burton smiles to news photographers, looking rather pleased to be the center of so much attention. But Amendment 48 is hardly her creation alone. Backing her are a host of extremist anti-abortion and anti-contraception groups that are providing legal help and funding.
Foremost among them is the Thomas More Law Center, a not-for-profit organization that offers legal support “to defend and protect Christians and their religious beliefs in the public square.” Hardly an organization of moderates, the center is named after Thomas More, who served as Lord Chancellor of England under the infamous King Henry VIII. More is especially remembered for choosing to educate his daughters — something that set him apart from his contemporaries — and for burning “heretics” at the stake. He is revered by fellow Catholics for choosing to be beheaded rather than betraying his faith.
The Thomas More Law Center was behind the failed referendum in Georgia and a host of similar failed efforts in other states.
Also supporting Amendment 48 is Human Life International, the mission of which is “to promote and defend the sanctity of life and family around the world according to the teachings of the Roman Catholic Church through prayer, service and education.” The organization opposes the use of all forms of contraception — even by married couples — and proclaims itself to be the largest “pro-woman” organization it the world.
“Little girls do not grow up dreaming of hopping from bed to bed and contraception,” their website states. “They dream of a man who will sweep them off their feet and love them forever, and having his many children.”
The American Life League, creators of “The Pill Kills” campaign, are also supporting Amendment 48, together with dozens of other anti-contraception, anti-abortion organizations — including Operation Rescue and Colorado Right to Life.
Notably absent, however, is National Right to Life.
Kristina Wilfore, executive director of the Ballot Initiative Strategy Center, an organization that studies the impact of ballot measures in elections, says she finds the situation with Amendment 48 “fascinating.”
“It exposes the fissures within the anti-choice movement,” she says. “The fact that you have Colorado Right to Life that was kicked out of National Right to Life because of their pursuit of this and because of other extreme actions is fascinating. Clearly this exposes a real dog fight that the right wing is having within their own movement about the efficacy of these measures.”
Since 1972, Colorado has seen 30 ballot initiatives concerning reproductive rights, she says. Only seven of the 30 were passed by the majority of voters, and of those only three were anti-abortion victories.
“They’ve used the ballot measures, but not extremely successfully, to take their issues directly to the people,” Wilfore says. “And the people have said, ‘Nope, not working for me.’”
But there’s a greater strategy in play here, one that could have an impact on Congress and the presidential election. Conservatives assume that having an anti-abortion measure on the ballot will draw out extremely conservative voters and help conservative candidates to win at the expense of liberal ones. But more extreme measures, like Amendment 48, tend to have the opposite impact, aiding pro-choice candidates, Wilfore says.
“When you go beyond what are intended to be polarized debates around abortion [to the point of] implicating women’s health and rolling back birth-control access and allowing the state to investigate miscarriages, it’s not the wisest move, especially in a western state, where women and voters have a sense of the proper role of government,” Wilfore says.
A state of disbelief
A recent poll by Rasmussen Reports shows the amendment failing, though not by as healthy a margin as women’s health advocates would like to see. More than half the Colorado voters surveyed — 52 percent — oppose Amendment 48, while 35 percent support it and 14 percent remained undecided.
Part of the problem surrounding Amendment 48 is that so many people don’t understand the broad implications of the measure on women’s health and reproductive freedom, says Crystal Clinkenbeard, spokeswoman for the No on 48 Campaign. Many incorrectly assume it’s just about abortion.
“One of the real challenges and opportunities with Amendment 48 is that Coloradans and Americans don’t believe that anyone would try to do something this extreme,” she says. “Not only is there a whole generation of women who’ve been born post-Roe v. Wade, there’s a whole generation or two of women for whom hormonal birth control has always been an option.”
Too many people don’t understand how the pill works and so don’t believe that it could be banned by Amendment 48, she says.
When she speaks to crowds on the issues, she inevitably spends part of that time explaining how hormonal contraception works so that her audience will understand exactly how invasive Amendment 48 would be if it were to pass.
“You spend a minute or two providing a sex education session to your audience,” she says.
But Amendment 48 isn’t just about turning back the clock on contraception and abortion; it’s about criminalizing abortion, she says.
“If you give legal rights to fertilized eggs, having an abortion could be considered murder,” she says.
That’s certainly the case in Nicaragua and El Salvador, where women are serving prison time for having abortions.
Clinkenbeard and those who oppose Amendment 48 are counting on the fact that, come November, most Coloradans, regardless of their views on abortion, won’t want to live in a state where a miscarriage can prompt a criminal investigation and where the pill is banned.
“The No on Amendment 48 Campaign opposes Amendment 48 because it puts the government, lawyers and courts into our personal lives,” she says. “It has really broad-reaching consequences on important life decisions.”
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