Amendment 48

Opposition galvanizes Democrats, Republicans

By Leslie Jorgensen
THE COLORADO STATESMAN

DENVER — Governor Bill Ritter joined growing bi-partisan opposition to Amendment 48 that seeks to redefine a person from the moment of birth to the instant of egg fertilization. The amendment would grant protections under the state constitution to the unborn, but would also trigger an expensive landslide of legal entanglements.


Photo by Tatianna Gruen/The Colorado Statesman

“As a Republican, I oppose unnecessary intrusion into the private lives of Coloradans,” says former state Sen. Dottie Wham.

The enormous cost would be born by Colorado taxpayers — and pose a health risk to women.

“Amendment 48 will put the government, the courts and the lawyers between a woman and her doctor,” said Ritter. “Changing the definition of the word ‘person’ will affect thousands of Colorado laws.”

If the “personhood amendment” passes, Ritter said, the state would be required to pay the costs of a legal challenge that might become a Supreme Court case — Colorado is the only state to put this amendment on the ballot. Add to the tab the cost of reviewing and revising thousands of state statutes, and defending interpretations that could also be challenged in court.

“Several years ago we passed a law in this state called ‘Parental Notification.’ Actually I supported parental notification,” said Ritter of the law that required parents to be contacted if a minor sought an abortion.

“As a district attorney, I had to defend it. And it became clear in defending it that it was unconstitutional,” said Ritter, recalling the losing battle in federal courts and the court of appeals. “At the end of the day, we spent hundreds of thousands of dollars — hundreds of thousands of dollars in state money.”

The state not only paid to defend the measure, it paid the prevailing parties and their legal fees. Ritter said Amendment 48 would be a replay and a drain of taxpayers’ dollars.

In the case of the parental notification law there were some close questions and gray areas that gave it a chance to survive court challenges. That, he said, is not the case with Amendment 48.

“If Amendment 48 passes, this is not a close question — the state would be put in a position of having to defend it,” said Ritter at an Oct. 7 press conference of “No on 48” backers on the west steps of the state Capitol.

“Coloradans have a long and proud history of rejecting government intrusion into their personal and family lives,” said Ritter.

An anti-abortion Catholic, Ritter joins the ranks of diverse opponents, including Democrats and Republicans, Planned Parenthood and National Right to Life, medical and religious leaders — including the Catholic Bishops of Colorado.

“As a Republican, I oppose unnecessary government intrusion into the private decisions of Coloradans,” said Dottie Wham, a former state senator who served 16 years in the state legislature.

“The Colorado constitution shouldn’t be manipulated by special interest groups with a single issue agenda like the proponents of Amendment 48,” declared Wham.

“Coloradans have seen this before — radical extremists tried to write their anti-family, anti-choice views into state policy in 2000, 1998, 1996 and 1994,” said Wham. “Each time, Republicans, Democrats and independents fought to protect the rights of Coloradans.”

“The Republican party — my party — is about protecting individual freedom, individual rights and individual opportunity,” said Wham. “That’s why the Republican Majority for Choice opposes Amendment 48… the work of a narrow minority with extreme political views.”

“A woman facing a medical crisis — like a pregnant woman who discovers she has cancer — should be able to make decisions about her treatment with her family, her doctor and her God,” said Wham.

Former U.S. Senator and former president of the University of Colorado Hank Brown concurred with Wham.

“This party has always been a bastion for protection of individual freedom… it took a place in the fight to preserve individual freedom as the government became a regulatory monster at the federal level,” declared Brown at a Colorado Republican Majority for Choice fund-raising dinner last month.

“This issue is about individual freedom, individual responsibility — the very heart of this Republican Party,” said Brown. “We’re the ones who believe individuals have a right to control their own lives … And at the point we give up supporting and defending freedom individual freedom and choice, we give up the very core of this great party.”

Medical care delayed or denied by legal battles?

According to a review of the amendment by the Colorado Bar Association, Amendment 48 could impose lawyers and courts into personal and life threatening decisions.

For example, opponents of Amendment 48 said that medical care for mothers might be denied or delayed if the procedure poses a risk to the fertilized egg. Most women and their families also would be burdened with legal fees to hire an attorney to argue their case before a judge — even then, the medical care might be denied.

In the case of a miscarriage (natural abortion), the state might be required to investigate the medical care and the mother to substantiate the reasons for the loss.

“It’s a sad fact that one in five pregnancies end in miscarriage,” said Eliza Johnson, a certified nurse midwife who represented the Colorado Chapter of American Nurses and Midwives. “It’s a sad time for a family.”

But then consider their sorrow compounded by government intrusion.

“If the fertilized egg has the same rights as a woman, would the government investigate every miscarriage?” asked Johnson.

Amendment 48 “is a sneaky attempt to ban all abortions in Colorado, including victims of rape, incest and when a woman’s health is at risk,” said Johnson.

“It goes much further than that. It is a one-sentence amendment that would sentence a family to a lifetime of heartache,” concluded Johnson.

“It’s one sentence and proves that laws really can be very simple,” countered Kristi Burton, author of Amendment 48.

“The goal of Amendment 48 is more than just outlawing abortion,” said the 21-year-old college student from Calhan, adding that the intent was not to ban birth control methods or abortion.

“I am for banning abortion, but the amendment does not guarantee that result,” declared Burton. “We want to define the unborn person.”

Burton said the amendment as written does not change existing laws. Its impact on the state statutes would be determined primarily by the legislature and then, the courts that hear challenges, she said.

“The amendment does not take the mother’s right to life away,” said Burton, adding that doctors already decide which lives of a family to save in catastrophic accidents.

“Amendment 48 recognizes modern medical science,” Burton said, adding it has advanced since Roe v. Wade was heard by the U.S. Supreme Court in 1973. “Now science tells us that human life really does begin at the moment of conception.”

Burton’s position was contested by Dr. Eric Surrey, an OB-GYN infertility specialist, who said the amendment is based on “religious values but it is not based on biological fact.”

“The moment of fertilization does not happen in a single moment,” said Surrey, adding that most fertilized eggs never mature and are released from the womb.

According to Surrey, one in five women suffers ectopic pregnancies, life threatening emergencies and the “leading cause of pregnancy by death.” An ectopic pregnancy is a fertilized egg outside of the uterus that is usually situated in the fallopian tubes.

Surrey said the amendment would force him to choose between saving the egg or the woman’s life. The amendment, he said, also may ban in vetro fertilization (IVF) — a method of fertilizing eggs outside of the womb.

“I can’t find legal exclusions for these,” said Surrey of the amendment.

Burton explained, “Whenever you pass a new law, courts look at the law and make interpretations. You can’t include every possible situation in a definition… There’s a difference between a definition in an amendment and a state statute that has to be more specific.”

Burton said she has learned a lot from Mike Norton, who is representing the proponents of Amendment 48. Norton, a former Republican CD 2 candidate and U.S. Attorney, is with the Greenwood Village-based law firm of Burns, Figa and Will.

Previously, Burton consulted Mark Meuser, a graduate of Oak Brook College of Law and Government, who moved from Missouri to Colorado to assist in writing the amendment. Apparently, the amendment process became more complicated. Burton contracted Norton and Meuser moved to California.

Burton is in her second year of studying law through an on-line program offered by Oak Brook College of Law and Government. The school aims to “train individuals who desire to advance the gospel of Jesus Christ through service as advocates of truth, counselors of reconciliation and ministers of justice.” The college entrance application also requires students to have knowledge of the Bible and believe in creationism.

Home schooled, Burton completed high school at the age of 15 and then worked for her father, Michael Burton, a real estate agent and Republican.

Burton said that she came up with idea for Amendment 48, but never imagined the work involved.

“To see how many people have become involved has surprised me, but in a good way,” said Burton, who just returned from the Western Slope and is headed to a Navigators student rally in Fort Collins this weekend.

A big break came in February when she met former Arkansas Gov. Mike Huckabee, who was the keynote speaker at the Colorado Leadership Program of the Rockies dinner at the Broadmoor Resort. While posing for a photo with Huckabee, Burton said she slipped him a draft of the proposed amendment. Shortly after his speech and book signing, Huckabee endorsed it.

Burton said she was somewhat disappointed that National Right to Life and Colorado Family Action did not endorse the amendment.

“They didn’t believe that this was the best way to overturn Roe. v. Wade,” she explained. “But our goal is to define a person.”

She’s encouraged by the recent Fox poll of Colorado voters that indicate 50 percent of voters oppose Amendment 48, 39 percent support it and 11 percent remain undecided.

“Our numbers have increased!” exclaimed Burton, who is hoping the last minute ad and mailer blitz will swing the undecided voters and win over opponents. (The details, she said, are top secret.)

Proponents of Amendment 48 include Colorado for Equal Rights, which raised nearly $250,000 through last month, and Colorado Right to Life with $24,020.

Opponents include Protect Families, Protect Choice Coalition that raised $830,319 as of Sept. 29, and Planned Parenthood of the Rocky Mountains Issue Committee with $72,545. Both Senate candidates Mark Udall, Democrat, and Bob Schaffer, Republican, are against the amendment.

Burton said she thinks Amendment 48 will drive pro-life voters to the polls and create a positive impact on the presidential and U.S. Senate races for Republicans.

Others, like state GOP chair Dick Wadhams, had hoped to sidestep divisive social issues such as Amendment 48 in this election year. Wadhams has been attacked for leaving Colorado Right to Life out of the state party convention vendors — and for a recent party-paid mailer to get out the pro-life vote.

“That will never happen again,” declared Wadhams, adding that it was a Republican National Committee mailer that he never approved.

Enacted by the People of the State of Colorado: SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read: Section 31. Person defined. As used in sections 3, 6, and 25 of Article II of the state constitution, the terms ‘person’ or ‘persons’ shall include any human being from the moment of fertilization.”

— Amendment 48