Monday, September 28, 2009
Last year, we wrote about Colorado's proposed "personhood" amendment. The proposed Colorado law would have defined "personhood" as beginning at the moment of conception. The measure ultimately failed. Nevertheless, a similar initiative in Florida has garnered national attention, and a California group is also preparing a ballot iniative.
The proposed Florida amendment states that one is a person "from the beginning of the biological development of that human being." According to the Tampa Bay Tribune, advocates for the proposed constitutional amendment have clarified that "the beginning of biological development" means the fertilization of an egg. Opponents of the bill responded, "By their definition, anything that you might do to interfere with the implantation of a fertilized egg would be tantamount to murder." The actions interefering with the egg would obviously include abortion, but less obviously, would include both emergency and regular methods of contraception. Proponents respond that in light of the science behind contraception - which generally prohibits fertilization - the bill might not affect contraception.
Assuming the proposals garner the requisite number of signatures and are approved by voters, a host of intertwined scientific, political, and constitutional problems would arise. If we assume that not all birth control prevents implantation of the fertilized ovum (and this is apparently the case), and that such an amendment would not criminalize such activities, the question remains: would it be constitutional to permit only those forms of contraception that do not interfere with a fertilized ovum?
Legally, it is likely that the proponents will lose even if some forms of contraception are permitted. First, to truly outlaw any form of contraception based on the notion that life begins at conception, the Supreme Court would arguably have to do something that it has been reluctant to do thus far - decide when life begins. If contraceptives are outlawed based on their interference with life, the Court would be hard-pressed to resolve the issue of which contraceptives are allowable and which are not without either implicitly or explicitly ruling that life begins at conception. The Court explained why it felt it could not decide that issue in Roe, and it subsequently dodged the issue entirely in Webster. Determining the constitutionality of such laws would push the Court ever closer to weighing in on that issue. However, if past is prolouge, indications are that the Court will again politely decline the invitation to do so.
The second obstacle is Roe itself. If Roe (and subsequently, Casey) would permit a non-viable fetus to be aborted, one could surmise that the Court would permit the destruction of a fertizlized egg. If the greater includes the lesser, then surely a form of contraception which would prevent implementation of a fertilized egg would pass muster under our current scheme. Of course, this is likely the goal of these measures - to test Roe. However, with the current formulation of the Court and Roe's status as a "super-precedent" of sorts, the sea change that it would take to abandon Roe seems unlikely to come in the near future.
The final obstacles are Griswold and Eisenstadt. Even if the Roe/Casey diad is discounted, the principles of reproductive freedom that are embodied in Griswold and Eisenstadt would still remain. Those cases stand strongly for the principle that all persons have the right to use contraceptives. If read narrowly, one could say that the right is limited to "legal" contraceptives only, and thus the principle remains intact even if some contraceptives are banned. But the larger idea in those cases - especially Griswold - is that there is a zone of privacy possessed by each individual that the government is not permitted to monitor or occupy. Declaring that certain contraceptive methods are allowed while others are not does significant damage to this core principle by implicitly dictating what a person may or may not use in the privacy of her or his home or doctor's office. Once the Court starts down that path, where will it end? Will all forms of contraception be banned? And if the Griswold privacy principle is undermined, will all of the rights built on that foundation - such as the right to live with one's family (Moore v. City of East Cleveland) or engage in private, consensual sexual conduct (Lawrence v. Texas) - fall next? Perhaps they will, perhaps they will not, but those advocating the demise of Roe and Griswold would do well to examine the implications of such advocacy.
Of course, at this time these proposals are quite nascent, and any analysis of these proposals is a purely academic exercise. However, it would not be surprising to see one or both of these proposals appear on a ballot in the not too distant future. We will keep you informed of any ciritical developments.