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Is Colorado’s ‘Personhood’ Amendment a Sweeping Approach to Ban Abortion?

Jason Salzman

A measure on the Colorado ballot has been compared to “fetal homicide” laws in dozens of states, but the measure is more far-reaching, and could subject pregnant women to prosecution for everything from choosing abortion to driving without wearing a seat belt.

Read more of our articles on Amendment 67 here.

Colorado voters will decide November 4 whether to expand the definition of a person in the state’s criminal code to include “unborn human beings.”

Backers of Amendment 67 argue that they aren’t aiming to ban abortion in Colorado, and they point out that “fetal homicide” laws in 38 states have yet to result in abortion bans, including laws in 24 states that give legal rights to fetuses at early stages of development.

But in a visit to Colorado during a campaign against the initiative, Lynn Paltrow, director of National Advocates for Pregnant Women, told reporters that Colorado’s Amendment 67 should not be compared to “fetal homicide” laws in other states because it’s unique among existing state laws in subjecting pregnant women to prosecution for almost any crime on the books.

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This is in stark contrast to other state “fetal homicide” laws that amend a small number of statutes, and many that explicitly exempt abortion as a reason for prosecution or exclude pregnant women as perpetrators.

“Amendment 67 is an entire overhaul of the criminal code,” Paltrow said. “That’s every statute.”

Paltrow presented a series of slides during a presentation with the text of common criminal statutes in Colorado: murder, manslaughter, vehicular homicide, reckless endangerment.

She replaced the words “person” or “child” with “unborn human being.”

For example, you commit murder in Colorado if you intend “to cause the death of another person.” If “person” becomes “unborn child,” then abortion becomes murder, Paltrow said.

Paltrow showed a slide of Colorado’s child abuse statute, inserted “unborn human being” into the statute’s wording, and explained how the law, as changed under Amendment 67, could be used to investigate, prosecute, and arrest a pregnant women believed to have put her “unborn child” at risk.

“What they are asking the citizens of Colorado to do is put in place a set of laws that begins by saying, ‘We believe a woman who has an abortion is guilty of first degree murder and deserves either life in prison or the death penalty.’ There are no exceptions.”

“Anything that a woman does that someone later believes she shouldn’t have done becomes evidence of recklessness,” she continued. “Standing on a ladder. Painting your nursery at six-months pregnant and falling off. Skiing while pregnant. Driving without wearing a seat belt. Not obeying a doctor’s advice to get bed rest. Child abuse becomes fertilized-egg abuse.”

Asked if this could happen with Roe v. Wade on the books, Paltrow said, “As long as Roe lasts, this particular part of 67 might be considered unconstitutional, but our research has documented that there will be a prosecutor somewhere who, the minute this is passed, will apply the murder statute to a woman who has had an abortion or anybody who has helped her. And then that person will have a right to argue that Roe protects them, but they will be making that argument from a jail cell. Because in most states, if you are charged with the crime of murder, you’re not even entitled to bail. All it takes is one enterprising, election-hungry prosecutor.”

“The only thing that Roe protects is abortion,” Paltrow continued. “It doesn’t protect you against prosecution for still births or miscarriages or accusations of risk and harm, because remember that neglect and child abuse aren’t harm. They are risk of harm. The evidence of risk-of-harm from cigarettes is more than from criminalized drugs. So the prosecutor will start with the least popular women using the most unpopular criminalized drugs.”

Asked for a response to Patrow’s arguments, Jennifer Mason, a spokeswoman for Amendment 67, emailed that she intended to comment, but she never did, after multiple requests.

In an email last month, Mason pointed to existing “fetal homicide” laws in other states and wrote that concerns about abortion being banned under Amendment 67 are a “common talking point for anti-life groups.”

Mason and other proponents refer to the measure as the “Brady Amendment,” referring to the name “Brady” chosen by Heather Surovik for her 8-month-old fetus, destroyed in 2012 by a drunk driver. Surovik survived the crash and talks about the tragedy at press events and legislative hearings.

Surovik has maintained that Amendment 67 is not intended to address abortion in Colorado or to subject pregnant women to prosecution. It’s about justice, she says.

“Who looks at Brady and says he wasn’t a person?” Mason has said.

“The irony is, if this amendment in Brady’s memory succeeded, what Brady’s memory would really be doing is creating a law that could have had his mother arrested even if she’d done absolutely nothing wrong or reckless,” said Paltrow, citing a New York case in which a pregnant woman was convicted of manslaughter of her own child after being in a car accident. “What the Brady Amendment would do is make mothers absolutely vulnerable to arrest themselves.”

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