Commentary Law and Policy

Keep Mothers Out of Jail: Vote ‘No’ on Colorado’s ‘Personhood’ Measure

Cristina Aguilar & Lynn Paltrow

Amendment 67 is not a law designed to protect pregnant women; rather, it would give law enforcement officials grounds to potentially imprison mothers.

Read more of our articles on Amendment 67 here.

This fall, the people of Colorado will have the opportunity to vote on Amendment 67. Though the measure’s proponents are marketing it as a way of bringing justice to a woman and the fetus she lost after a collision with a drunk driver, Amendment 67 is not a law designed to protect pregnant women. Rather, it is a total overhaul of Colorado’s criminal code that would give law enforcement officials grounds to potentially arrest, prosecute, convict, and imprison women and mothers.

Amendment 67 would, if passed, re-define the words “person” and “child” in the entire criminal code to include “unborn human beings.” Numerous Colorado laws use one or both of these words. For example, the penal code defines murder in the first degree as occurring if someone, “after deliberation and with the intent to cause the death of a person other than himself … causes the death of that person,” or if a person “knowingly causes the death of a child … and the person committing the offense is one in a position of trust with respect to the victim.” (Emphasis added.)

If the words “person” and “child” are redefined to mean an “unborn human being,” then a pregnant woman who deliberately and intentionally terminates a pregnancy would thus be causing the death of a “person” or “child” as defined in Colorado’s criminal laws. Unlike in other states with fetal harm laws, nothing in the statute exempts people who obtain abortions—for any reason—from its scope.

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Under these interpretations, Amendment 67 would go farther than any anti-abortion measure in U.S. history. Even before Roe v. Wade, criminal abortion laws typically carried penalties from one to ten years, not Colorado’s first-degree murder sentencing of life in prison or death.

Beyond abortions, the amended law could also be used to punish pregnant women for a number of other reasons, such as stillbirths and substance use. Personhood USA, the organization backing Amendment 67, has denied that the statute could be used to penalize pregnant women and new mothers (though it readily admits that it will ban abortion). It claims, for example, that the threat of possible arrests against those who miscarry is just a “scare tactic.” 

This is not true. Well-documented research shows that hundreds of women in a number of states have been arrested, detained, or forced to undergo medical procedures based on the legal principle that Amendment 67 would establish if enacted. Moreover, the women targeted for these arrests have overwhelmingly been low-income mothers and mothers of color.

Amendment 67 proponents also claim that new legislation would first have to be passed before anything would change. This is not true either.

Once the word “child” is redefined to include the unborn, no further legislation is necessary before criminal laws become applicable to pregnant women. For example, in South Carolina, a decision that the word “child” in the state’s criminal code included viable fetuses was enough to immediately apply criminal laws to pregnant women, including those who used drugs or experienced stillbirths.

Similarly, the Alabama Supreme Court recently decided that the word “child” includes the unborn from the moment of fertilization in their state constitution. Using this new and expanded definition of the word “child,” research from National Advocates for Pregnant Women has found that more than 130 women have been arrested under the chemical endangerment of “children” law, passed in 2006 to penalize adults who take juveniles to dangerous places like methamphetamine labs. However, prosecutors have since used it to punish women who used marijuana or another controlled substance while pregnant, even when they gave birth to healthy babies—which has been in the majority of cases.

According to a Personhood USA press release, this Alabama decision—which makes it possible to sentence mothers to lengthy prison terms away from their children—is a “monumental victory.”

So apparently the point of the “pro-life” movement is not only to outlaw abortion, but also to put women and mothers in jail. After all, beyond the implications for pregnant women who use substances or miscarry, approximately 60 percent of women who have abortions are already mothers too.

Vote “no” on 67 and send the message loud and clear: Mothers belong with their families—not in prison.

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