That confusing phrasing of the measure may make voters more likely to vote 'yes.' 'Personhood' faces N.D. test

Radical elements in the anti-abortion movement keep coming up short in their effort to define an embryo as a “person” with constitutional rights.

It’s failed on the ballot in conservative strongholds like Mississippi and in Republican-dominated legislatures around the country.


But in North Dakota this year the “personhood” movement may have figured out a back door for its quest: Intentionally vague wording. Here’s what North Dakotans will find on their ballots Tuesday: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”

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That fuzzy phrasing may not only make voters more likely to vote “yes” on the proposed amendment to the state constitution on Election Day, but it gives the North Dakota legislature and the courts ample room for interpretation. The fallout could be dramatic: The doctors at the only fertility clinic in the state say they will shut down, rather than risk legal action over how they handle embryos created as part of in vitro fertilization. Health care activists say the broad wording could also restrict women’s choice of birth control methods. Some fear it will limit end of life decisions about medical care.

The wording is so imprecise that even groups within the anti-abortion movement disagree about what it means. Personhood USA, which pushes such ballot measures around the country, says this is definitely a “personhood” referendum. Yet the North Dakota Catholic Conference and the main advocacy group behind the state initiative both declare that it’s not a personhood vote. They say that the measure is a statement of North Dakotans’ beliefs and won’t change any laws or criminal liability regarding fertility clinics, end of life care or abortion access.

This kind of confusion and word parsing is exactly what some of the most die-hard activists want at this point, since it would take their world view – considered a fringe even within the anti-abortion movement – to the courts and legislature for a robust debate over exactly how society defines the word “person.” If the law defines an embryo – whether in the womb or in a petri dish at a fertility clinic – as a person with the full legal rights of any human being, then anyone who harms or destroys an embryo or fetus at any stage of development could be prosecuted.

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Personhood USA spokeswoman Jennifer Mason said a victory would be “a great boost to the pro-life movement” that could galvanize other states to act. The organization’s website says, “It is not an exaggeration to say that the most important election in the country in 2014 will be in North Dakota.”

Yet North Dakota Choose Life, the leading local sponsor of the ballot initiative known as Measure 1, says it isn’t even a personhood amendment.

“This is not personhood. It’s not,” said Christopher Dodson, the executive director of the North Dakota Catholic Conference which backs the Choose Life effort. “The Catholic bishops and Right to Life and Concerned Women for America have never supported personhood.” he said. They do back Measure 1.

The abortion rights groups say all the wrangling over whether it’s “personhood” shows that even the anti-abortion groups know that voters balk at extremes.

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“The more people know about personhood amendments, the more they reject them, which we’ve seen by wide margins over the last few years from Colorado to Mississippi,” said Dawn Laguens, executive vice president of the Planned Parenthood Action Fund. “The measures on the ballot in Colorado and North Dakota would ban safe and legal abortion and could threaten some forms of birth control and fertility treatment.”

These divisions are playing out elsewhere this year, where Personhood has been injected in a number of Senate contests. But the movement is shying away from the term “personhood,” and several Republican Senate candidates have actively distanced themselves, even if they once embraced some form. Colorado, for instance, has its own personhood initiative on its ballot this year, and Rep. Cory Gardner, who is running for Senate, won’t embrace it even though he has in the past backed other personhood proposals.

Colorado defeated personhood in 2008 and 2010, and Mississippi, a deeply conservative state, rejected it in 2011. Efforts to get it on the ballot elsewhere have fallen short.

Many traditional anti-abortion groups said the sweep of the personhood efforts could detract from their mission. Some fear the inevitable legal fight – because personhood goes much further than any abortion restrictions the court has upheld since the Supreme Court’s Roe vs. Wade ruling in 1973 – could even set the movement back.

Personhood advocates see North Dakota as a chance to change the dynamic. Both sides have poured hundreds of thousands of dollars into advertising. Local Planned Parenthood groups are spearheading opposition. The support of the Catholic bishops, which have helped fund the campaign for Measure 1, has been pivotal.

Advocates of the North Dakota ballot measure say that it would “clarify” that the constitution’s right to life could apply to any part of a human life — including gestation — if the legislature chooses to pass a law along those lines.

Nothing in the law – such as a ban on abortion or Do Not Resuscitate orders for the critically ill – would change immediately if the measure passes. That would require legislation. But abortion rights proponents say if the measure does become part of the state constitution, it would be easier for North Dakota lawmakers to pass such bills. And they don’t doubt they would try. North Dakota is already engaged in a court battle over whether it can ban most abortions after six weeks of pregnancy, one of the most restrictive state laws in the country.

The personhood language “is vague and open to interpretation, “ said Karla Rose Hanson, a spokesperson for North Dakotans Against Measure 1. “We’re concerned that this could lead to government intrusion in a variety of situations,” including abortion, end of life care, or infertility treatments.

A similar debate is underway in Colorado. That proposed constitutional amendment would protect “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.” The language, focusing on fetal protections in the criminal code, is narrower than the two earlier Personhood USA initiatives that gave a fetus constitutional rights at the moment of conception.

One of its most outspoken proponents is a Colorado woman who was 38 weeks pregnant when a drunk driver hit her car, killing the fetus. The driver was not criminally liable for the death. She hopes the personhood amendment would change that in any such future tragedy.

In addition, Tennessee voters will consider an abortion-related constitutional amendment that only few consider part of the personhood movement. Tennessee voters will be asked whether they want to amend the constitution to specifically say that nothing in it protects the right to an abortion or the funding of an abortion.