Amendment 48 - Muddled Thinking

 by Douglas Schrepel

This November voters in Colorado will be faced with the prospect of extending the notion of “personhood” to the moment of human conception.  Amendment 48 is the result of a petition drive headed by Kristi Burton and a group calling themselves Colorado for Equal Rights.  According to Burton, amendment 48 would, “…guarantee every person, at every stage of life, the right to life, liberty, equality of justice and due process of law.”

Opponents to Amendment 48 are justifiably concerned.  Amendment 48 would open the door to banning or extensively limiting all abortion (even in cases of rape or incest), in-vitro fertilization (due to the large number of wasted embryos necessary for a successful pregnancy), and stem cell research, as well as eliminating many commonly used birth control methods.  In addition to these concerns, fears abound surrounding the governmental infringement on a woman’s right to privacy in determining when and how to bear children.

Amendment 48 once again highlights the failure of the courts and lack of full debate in the public square to address the key issue of the moral status of a fetus.  In the United States, this failure goes back to at least the Roe v. Wade Supreme Court decision of 1973.  If the fertilized egg cell truly does have the same moral standing as a fully adult human person, abortion, current methods of in-vitro fertilization, stem cell research and many methods of birth control, are moral outrages and should be halted.  In addition, a woman’s right to privacy (and the risk involved in pregnancy) is a small price to pay to protect a “person” from a certain death.

The problem with amendment 48 is not that it would limit our ability to engage in many socially important and accepted practices; the problem with amendment 48 is that the doctrine of early fetal personhood is false.  (See The Secular Conscience (2008) by Austin Dacey for more on this line of argument.)

Personhood implies that a being has interests.  Interests are not the same as needs.  A tree has needs in the sense of sunshine, water, and minerals from the soil.  Yet a tree is not a person, it has no interests.  That is, it has no sense of awareness, no ability to feel pain, no sense of a future, or any of the attributes that we might associate with personhood.  Any moral responsibilities that we may have are not directly related to the tree, but rather to our fellow human beings, and perhaps other sentient creatures that may depend on or care about the tree.  A fertilized egg cell and early fetus demand only the same degree of moral consideration as other life without interests.

To argue that a fetus is a person because it was made in the image of God or has an immortal soul are religious arguments for which no shred of evidence exists.  In a pluralistic society in which we embrace people of differing religious or non-religious persuasions, religious arguments, with no evidence, should not be the basis of our criminal law.  (See the work of Princeton University philosopher Peter Singer for more along this line of argument.)

Amendment 48 is muddled thinking and would make bad law.

Douglas Schrepel   October 2008