TRUTH TEST: Would Amendment 48 ban abortions?

DENVER - Throughout the 2008 election season, 9NEWS is committed to holding those who take out political commercials on our station accountable for what they say.

The following Truth Test is on an ad opposing a proposed amendment to the Colorado Constitution. Amendment 48, known as the "Definition of Personhood" proposal, if passed, would add a definition of a "person" in Colorado. This would "define the term 'person' to include any human being from the moment of fertilization." Further, any time the word "person" is mentioned in the constitution, the new definition would apply.

According to the Colorado Blue Book, a supplement to help voters understand ballot questions, this would specifically apply to sections dealing with inalienable rights, equality of justice, and due process of law. In the view of this amendment, any entity given status of personhood, would have the right to "life, liberty, and property," as well as have the opportunity for judicial remedy if such rights are violated (Source: Colo. Blue Book).

The ad is paid for by Protect Families, Protect Choice Coalition, registered with the Secretary of State as an issue committee. It filed eight years ago to oppose restrictions to abortion in Colorado and has included in its description for this election cycle its opposition to Amendment 48.

According to the state, the group has received close to $1.5 million in contributions, the largest of which are from NARAL Pro-Choice Colorado Foundation and the Planned Parenthood Western Regional Assembly as well as numerous individuals from across the state (Source: SOS ID: 19991200119).

The ad, "We've Seen it Before" is 30 seconds long and its claims are tested below.

QUOTE: You've seen it before, a small group trying to rewrite our constitution with their own views. And Colorado has said no. But they're back, this time with Amendment 48. (Graphics/Sources: "Abortion ban proposed for Colo," The Denver Post, May 16, 1998; "Abortion initiative gets legal challenge," The Associated Press, Jan. 13, 2000; "Abortion measure moves ahead," The Denver Post, Nov. 29, 2005)

TRUTH: This is a mix of truth and opinion.

The first point to be addressed is the contention that a "small group" is trying to amend the constitution. This is a bit disingenuous. The Denver Post reported in May that Colorado for Equal Rights, the organization leading this initiative, gathered more than enough signatures to put this measure on the ballot (Source: Denver Post).

In approving the petition, Secretary of State Mike Coffman recorded that the petitioners gathered more than 135,000 signatures, about 103,000 of which would be taken as valid. Even after the removal of signatures, this was about 35 percent more signatories than required to put the measure on the ballot. (Source: Colo. elections). This is not "small" by any measure.

The articles offered as citations for issues what "you've seen before," also need some context. Coloradans have been asked before whether to approve bans on abortion, according to the three stories listed in the ad.

What should be noted is that all articles deal with a facet of the debate over reproductive rights: partial-birth abortion, parental-notification of a minor's request to abort, and late-term abortions. However, the language in Amendment 48 does not specifically mention any of these issues. Each article and the issues referred to in those stories are described below.

The first story's full headline in The Denver Post is "Wis. abortion ban proposed for Colo." The full article, written by Peggy Lowe, was published May 16, 1998 in the "Denver and the West" and is not available online without purchase, although 9NEWS has obtained some of the information the story addresses.

At the time, Colorado was debating whether partial-birth abortions should be criminalized. This article discusses a recent decision by the Wisconsin Supreme Court upholding partial-birth abortions and overturning a law that seemed to be similar to the Colorado's Amendment 11 (Source: State of Colorado).

The second story is actually "Parental-notification abortion initiative gets legal challenge," was run by The Associated Press in 2000. The article, by Steven K. Paulson, cannot be found online without purchase, but 9NEWS obtained the article from Factiva.com.

The article discusses a lawsuit filed against the state by Planned Parenthood, over an issue passed by voters in 1998. Amendment 12, also known as the Colorado Parental Notification Act, was approved by voters and added to the Colorado Constitution that doctors must notify parents before performing an abortion at a minor's request (Source: State of Colorado).

The measure was not going into effect, even in 2000, because of this lawsuit. Planned Parenthood challenged the lawsuit as unconstitutional and said that it could prevent the use of emergency contraception, like the "morning-after pill." This article discusses how then-Gov. Bill Owens (R-Colorado) said that the law would not allow the state to prosecute medical providers who prescribe such contraception. It should be noted that the law was struck down in 2000, but that the Colorado General Assembly passed a similar law, slightly amending the ballot language, in 2003 (Source: H.B. 1376).

The final article, "Abortion measure moves ahead" by Julia C. Martinez in The Denver Post, cannot be obtained without purchase. 9NEWS was unable to find a full copy of the November 2005 article in "Denver and the West," but from the summary on The Denver Post archives, it seems to be discussing another ballot issue. This time, the issue related to banning late-term abortions and supporters of the initiative were trying to get it on the November 2006 ballot (Source: Colo. elections). Proposed Initiative No. 80 did not actually make it to the ballot and so it was never put to voters on a formal basis.

QUOTE: Nurses and doctors call 48 a 'sneaky attempt to ban abortion.' Even for victims of rape and incest or when a woman's life is at risk. (Graphic: 48 Bans Abortion).
(Sources: Grand Junction Sentinel, Sept. 16, 2008; Aspen Times, Sept. 5, 2008; The Denver Post, Sept. 29 2008)

TRUTH: Based on the citations in the ad, this claim is not necessarily based on fact. However, the issue certainly requires context.

9NEWS cannot find a statement from the American College of Nurses-Midwives (ACNM), as attributed in the ad. However, upon asking, 9NEWS received an e-mail clarification from Protect Families Protect Choices. The Denver chapter of the ANCM (Region V, Chapter III) is listed as endorsing the position against Amendment 48 (Source: Protect Families Protect Choices).

Protect Families Protect Choices also included a statement from a certified nurse-midwife, Eliza Johnson, who spoke alongside Gov. Bill Ritter (D-Colorado) in a press conference to announce their opposition to Amendment 48. 9NEWS confirmed with the local chapter head, Jennifer Hensley, that Eliza Johnson is a member of the chapter and was speaking on behalf of ANCM in Denver when she said, "As a nurse, I oppose Amendment 48...[it] is a sneaky attempt to ban all abortion in Colorado, even for victims of rape, incest, or when a woman's life is at risk" (Source: e-mail to 9NEWS, Oct. 20, 2008, American College of Nurse-Midwives).

More information about the newspaper citations in this portion of the ad can be found following the summary of the issue. The bottom line is: all of the print sources are opinion pieces published in the respective newspapers, and should not be taken as fact.

In regards to the issue at hand: whether this amendment would ban abortion in Colorado in all circumstances, the context is important.

The Colorado Blue Book, in showing arguments for the amendment, says: "The measure may establish the legal foundation to the end of the practice of abortion in Colorado" (Source: Colo. Blue Book).

It all comes down to the use of the term "fertilization." In a biological sense, this means that an egg and sperm have united. This is where it gets tricky. Technically speaking, such a union is not on track to develop into a fetus unless it is implanted on the woman's uterus, which is the step after fertilization.

The assumption made by Amendment 48 opponents is that it would provide the legal framework for methods considered to be destructive to a fertilized egg to be considered murder, regardless of implantation. If a fertilized egg is aborted, then, there would be a legal basis to prosecute the parties involved.

Since it is not explicitly referred to within the ballot or the proposed constitutional language, this may only be considered speculation. As stated earlier in this Truth Test, the measure seeks to define the term "person" to "include any human being from the moment of fertilization" and apply it to the Colorado constitution and laws where appropriate.

The Blue Book also points out that currently the U.S. Supreme Court precedent legalizes abortion as "the unborn were not included in the word 'person' as used in the U.S. Constitution" (Source: Colo. Blue Book). If passed, however, Amendment 48 would put into the Colorado constitution that the unborn are included within the definition of a person. If challenged at the federal level, however, there is not standing legal basis to support the Colorado measure.

In regard to the sources used in this portion of the ad, it should be noted that the Grand Junction Sentinel article and the Aspen Times article cited in this portion of the ad are editorials.

There is no article in The Denver Post on September 29 dealing with Amendment 48, but instead a series of published "Letters to the Editor" regarding two previously run editorials. The letters can be found here. The editorials are: "Amendment 48: It empowers Coloradans," written by Colorado for Equal Rights founder Kristi Burton and "Amendment 48: it's dangerous to women" by L. Indra Lusero and Lynn M. Paltrow, two pro-choice advocates based in Denver.

These sources must be taken with a grain of salt, as they refer only to the writers' opinions, and not necessarily to statements of fact.

QUOTE: 48 could even ban some forms of birth control, like the pill (Graphic: 48 even bans the pill) (Sources: Aspen Times, Sept. 5, 2008; The Denver Post, Sept. 29, 2008)

TRUTH: The language used by the commercial's narrator is opinion. However, the commercial's graphic is missing the key word in the narrated sentence which is "could."

The sources for this claim are the same editorials as listed above, so 9NEWS will only address the facts of Amendment 48.

To be clear, Amendment 48's language does not address birth control, but opponents argue that it would provide, once again, the legal basis to limit access to certain forms of birth control.

In terms of Amendment 48, personhood status would be given to a fertilized egg, regardless of whether the egg actually implants itself. The argument against Amendment 48 follows that any form of birth control that would prevent implantation of a fertilized egg would be prohibited, as it would end the life of a legally-defined person.

Certain birth-control pills are designed to prevent implantation if fertilization occurs. According to MedicineNet.com, for example, the "Minipill" type of hormonal birth control pills makes the uterus less receptive to implantation (Source: Medicinenet.com).

Opponents argue that this type of contraception, as well as emergency contraception could be legally banned if Amendment 48 passes, thus limiting women's access to certain birth control methods.

Again, "could" is the operative word here. Whether the law is used in this context is speculation; Amendment 48 has no explicit reference to birth control.

QUOTE: It simply goes too far. Vote 'no' on 48.

TRUTH: This is opinion.