Colorado Amendment 67 - How the personshood movement will tell barefaced lies right to your face

I've written about the personhood movement before, here and here (be warned, I am really not very nice about it or some of the people involved). To paraphrase a famous Jedi, "You'll never come across a more wretched hive of scum and villainy." They lie. A lot. Sometimes by omission, sometimes deliberately. It is what they do, it is what they need to do in order to make their position and themselves seem reasonable. Colorado's proposed Amendment 67, on the ballot for this years November elections, is just the latest example of this.

So let me tell you about Amendment 67, which according to the Colorado Secretary of State's website is:

The title as designated and fixed by the Board is as follows:

An amendment to the Colorado constitution protecting pregnant women and unborn children by defining "person" and "child" in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings.

The ballot title and submission clause as designated and fixed by the Board is as follows:

Shall there be an amendment to the Colorado constitution protecting pregnant women and unborn children by defining "person" and "child" in the Colorado criminal code and the Colorado wrongful death act to include unborn human beings?

Although there have been attempts to claim this is not a personhood bill (although some admit that it is indeed a personhood bill) or an attempt to ban abortion, that is exactly what it is. It is just coming through the back door.

Background

In July 2012 Heather Surovik, the face of Amendment 67, tragically lost her unborn baby at 8 months when a drunk driver ran into her car. The driver was charged with vehicular assault but the law in Colorado at the time did not allow for extra charges for the death of the unborn fetus, whom Ms. Surovik had named Brady (hence Amendment 67 also being called "Brady's Amendment"). As a result of public pressure, the Colorado Congress passed H.B. 1154, the Crimes Against Pregnant Women Act, in 2013. This added Article 3.5 (Offenses Against Pregnant Women) to Title 18 (Criminal Code) of the Colorado Revised Statutes, effective July 1 2013.

The backers of Amendment 67 say that Article 3.5 doesn't go far enough because it doesn't use the word homicide. And here is where you start to see what the pro-Amendment 67 people are up to.

It doesn't use the word homicide because Article 3 of the Colorado Revised Statutes (C.R.S. from now on) defines homicide as:

"(1) "Homicide" means the killing of a person by another. C.R.S. § 18-3-101(1)

 And then defines person as :

(2) "Person", when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act. C.R.S. § 18-3-101(2)

So, the death of a fetus can't be homicide because the definition of person in Part 1 (Homicide and Related Offenses) of Article 3 (Offences Against the Person) specifically states that you must have been born and be alive to be a person for the purposes of homicide in the criminal code. So the definition of person under the criminal code must be changed in Colorado in order for an unborn fetus to be considered a person, and for their death to then possibly be considered a homicide.

Hence, Amendment 67.

Can you see where this is going yet? No? Here are some clues

Now, whilst some people who support Amendment 67 are clear that this is about making abortion illegal (Colorado Right to Life state that the amendment makes abortion illegal - see the CPR article linked above), the public and vocal face of the pro amendment people argue this is just about adding a fetal homicide statute to the books, like some 38 other states have, but those evil pro-abortion people just ruin everything. 

Here is what the A Voice for Brady website says:

When I tried to change our state laws to protect babies like Brady in January, abortion advocates and their allies at the capitol testified that I had merely “lost a pregnancy” and shot down a bill that would have brought justice to babies killed during the commission of a crime. Immediately following those hearings, I filed “The Brady Amendment” which calls for fetal homicide laws to at last be applied to unborn victims of violence in Colorado.

The same Lawmakers passed H.B. 1154, dishonestly titled the “Crimes Against Pregnant Women” act. Planned Parenthood and supporters of H.B. 1154, who opposed my efforts to bring justice for Brady, have now passed a law that specifically reinforces that babies like Brady are not persons and eliminates criminal liabilities for abortionists who kill women during an abortion. Governor Hickenlooper signed this law, which says that drunk drivers like the one who is responsible for Brady’s death could have as little as a $2,000 fine. My son’s life was worth infinitely more than $2,000! I believe that this is one of the most offensive and deceptive bills to ever be passed in Colorado.

Remember how this is totally, absolutely, definitely, nothing to do with abortion? That must be why they don't mention abortion. Oh... Careful there pro-67ers, your agenda is showing. Oh, and your lies. Yeah, you didn't think we'd notice did ya? More on the lies soon.

Well, that H.B. 1154 just sounds awful doesn't it. What does it even do? Well, since you asked, let me tell you.

H.B. 1154 added a new article to the Colorado Criminal Code that deals specifically with offenses against pregnant women. It introduces 7 new crimes to the code:

1. Unlawful termination of pregnancy in the first degree - class 3 felony.
2. Unlawful termination of pregnancy in the second degree - class 4 or 5 felony.
3. Unlawful termination of pregnancy in the third degree - class 5 felony.
4. Unlawful termination of pregnancy in the fourth degree - class 5 or 6 felony.
5. Vehicular unlawful termination of pregnancy - class 5 felony.
6. Aggravated vehicular unlawful termination of pregnancy - class 4 felony.
7. Careless driving resulting in unlawful termination of pregnancy - class 1 misdemeanor.

And here is where the whiff of manure starts to come through. It's a good thing they don't have Smell O'Vision yet, because this whole thing reeks.

OK, so you say they are lying. About what?

Well, almost everything, actually.

Let me break it down for you, so there can be no mistaking that the call for Amendment 67 is built on lies.

 abortion advocates and their allies at the capitol testified that I had merely “lost a pregnancy” and shot down a bill that would have brought justice to babies killed during the commission of a crime.

Bull. The Offenses Against Pregnant Women article in the Criminal Code is all about justice for "babies" killed during the commission of a crime. All 7 of the crimes introduced in that code are about the unlawful termination of a pregnancy and punishing the perpetrator. There was a bill, and it was signed into law in 2013. So, this is lie number 1.

I filed “The Brady Amendment” which calls for fetal homicide laws to at last be applied to unborn victims of violence in Colorado.

 Bull. "The Brady Amendment" calls for the Colorado constitution to be changed to define "person" in the Colorado Criminal Code (C.R.S.Title 18) and Wrongful Death Act (C.R.S. § 13-21-201 (2014)) to include unborn human beings. This does not just apply fetal homicide laws to unborn victims of violence - it redefines person for every crime and wrongful death. Do you know what does apply something resembling fetal homicide laws without altering the whole criminal code? Article 3.5, Offenses against Pregnant Women. Sure it doesn't call them fetal homicide laws, but that is exactly what the effect is. Really, what is in a name? Lie number 2.

The same Lawmakers passed H.B. 1154, dishonestly titled the “Crimes Against Pregnant Women” act.

Bull. Dishonest how? This bill created 7 crimes that concern offenses against pregnant women only - IE the unlawful termination of pregnancy. So they don't count if you aren't pregnant. Last I checked, only women can become pregnant. So how is it dishonest to call it the "Crimes Against Pregnant Women" act? Lie number 3.

Planned Parenthood and supporters of H.B. 1154, who opposed my efforts to bring justice for Brady...

Bull. Planned Parenthood opposed your transparent efforts to ban abortion by the back door, supporters of H.B. 1154 introduced a bill that became law that was directly aimed at bringing justice for pregnant women who go through exactly what Ms. Surovik did. Let's be clear here - 1154 introduced laws that would have brought justice for Brady had they been in effect in 2012. The law was inadequate for what happened to Ms. Surovik, and it was changed to deal with this. The system worked exactly like it is supposed to work, for once! These are lies number 4 and 5.

... have now passed a law that specifically reinforces that babies like Brady are not persons and eliminates criminal liabilities for abortionists who kill women during an abortion.

Bull. Well, if I am being generous, half true kind of. Otherwise, this is one of the most offensive and blatant lies. It relies completely on the fact that the average person does not know the law or how to look it up. Anybody with an internet connection can find out the content of article 3.5. Anyone in Colorado who can get to a library with a law section can find out the content of article 3.5.

Now, the first part of what the "A Voice for Brady" website says here is sort of true because C.R.S. § 18-3.5-110 says:

Nothing in this article shall be construed to confer the status of "person" upon a human embryo, fetus, or unborn child at any stage of development prior to live birth.

All this does is reinforce what the Colorado Criminal Code already says - that if you haven't been born then you are not considered a person under the eyes of the law. Imagine that. What this does is the real reason the pro-67 lot are upset - it prevents a personhood claim that would essentially ban abortion under Colorado law by making it a crime. That is why the people who support Amendment 67 do not like article 3.5, because this isn't about fetal homicide, this is about giving a pregnancy the status of a fully grown adult when it could be just a sack of cells in the womb (amendment 67 makes no provision for stages of pregnancy - it just says all pregnancies from fertilization to birth are persons).

Then we have the big lie - that article 3.5 eliminates criminal liability for doctors who perform abortions and kill women during one. This is blatantly absurd and a barefaced lie. Article 3.5 simply does not remove liability for doctors whose patients die during an abortion procedure. The claim made by "A Voice For Brady" is just ridiculous. To begin with, article 3.5 does not remove any penalty or law that governs medical malpractice, wrongful death of a person (the pregnant woman in this case) or crime against a person like homicide. If a doctor negligently or intentionally kills a woman during an abortion procedure then all law that was applicable before article 3.5 was introduced is still applicable today if that law itself is still current. It is that simple. What the pro-67 people are referring to here is the section on exclusions that is contained within article 3.5, which states at C.R.S. § 18-3.5-102(1) :

Nothing in this article shall permit the prosecution of a person for any act of providing medical, osteopathic, surgical, mental health, dental, nursing, optometric, healing, wellness, or pharmaceutical care; furnishing inpatient or outpatient hospital or clinic services; furnishing telemedicine services; or furnishing any service related to assisted reproduction or genetic testing.

This does not remove criminal liability from doctors in the case of killing a woman whilst performing an abortion. It is that simple. All this says is that if you are providing medical care to a pregnant woman then this article (3.5 Offenses Against Pregnant Women), and only this article, does not apply to you. This section is reinforcing the definition given in C.R.S. § 18-3.5-101(6) of what "unlawful termination of pregnancy" means:

 "Unlawful termination of pregnancy" means the termination of a pregnancy by any means other than birth or a medical procedure, instrument, agent, or drug, for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained, or for which the pregnant woman's consent is implied by law.

Take the two together and they mean that if you are a doctor who provides a medical abortion for a woman who consented then this article (3.5 - which is aimed at people who end a pregnancy through malice or negligence and without the pregnant woman's consent) is not about you. It does not mean that if you are a doctor who murders a woman on the operating table, or screws the abortion procedure up so badly that the woman dies, that you won't or can't be criminally prosecuted.

The claim that article 3.5 removes criminal liability from doctors who kill a woman during an abortion is a big, fat, lie. It simply is not true.

So that's lies 6 (really a half truth) and 7 (which is a whopper - kind of like a "Liar, Liar, pants have gone supernova").

Governor Hickenlooper signed this law, which says that drunk drivers like the one who is responsible for Brady’s death could have as little as a $2,000 fine. My son’s life was worth infinitely more than $2,000!

And this one is a peach. Let me explain how dishonest this statement is, even though it contains elements of the truth.

Under article 3.5, the drunk driver that hit Ms. Surovik and ended her pregnancy would be prosecuted under number 6 from the list of crimes that article 3.5 introduced as I listed them above - Aggravated vehicular unlawful termination of pregnancy. This is because he was driving under the influence of alcohol, making this more serious than numbers 5 or 7 off the list above. C.R.S. § 18-3.5-108(2) states:

Aggravated vehicular unlawful termination of pregnancy... is a class 4 felony.

That's a class 4 felony under Colorado law, not federal law. A class 4 felony under Colorado law calls for a minimum fine of $2,000. It also has a maximum fine of $500,000 (C.R.S. § 18-1.3-401(1)(a)(III)(A)). A jury could decide to award any amount in between those two. How many juries do you think would award a woman who lost a pregnancy because of a drunk driver just $2,000?

Exactly.

Under article 3.5 the drunk driver who hit Ms. Surovik would be liable for a fine of between $2,000 and $500,000  if found guilty of aggravated vehicular unlawful termination of a pregnancy in addition to the penalties for any other charges brought against him.

So "A Voice for Brady" is not technically wrong here - they are just not telling you the whole story. In short, they are lying by omission. BUT, the story does not even end there. "A Voice for Brady" does not mention here the prison sentence that comes with a class 4 felony - the implication they make is that the only punishment is a little fine of $2,000. $2,000?! Why that's outrageous!

And also another lie by omission.

The minimum prison sentence for a class 4 felony in Colorado is 2 years imprisonment, and the maximum is 6 years imprisonment, with parole possible after 3 years (C.R.S. § 18-1.3-401(1)(a)(V)(A)). Under article 3.5 the drunk driver who hit Ms. Surovik would have been liable for a prison sentence of between 2 and 6 years if found guilty of aggravated vehicular unlawful termination of a pregnancy in addition to the penalties for any other charges brought against him. In the case of the driver who hit Ms. Surovik, he plead guilty to two counts of felony vehicular assault and driving under the influence, which could have put him away for another twenty years. Sheat's killed himself before sentencing.

"A Voice for Brady" forget to tell you that the article 3.5 charges would be on top of other charges brought against anyone who killed an unborn child. Article 3.5 does its job pretty well, especially when you look at what other crimes fall into the same classes of felony that article 3.5 hands out. Unlawful termination of pregnancy in the first degree, the most serious crime outlined in article 3.5, is a class 3 felony in Colorado, just like certain classifications of murder in the second degree are (C.R.S. § 18-3-103(3)(b). Manslaughter is a class 4 felony under Colorado law (it is defined in part as a "person [who] recklessly causes the death of another person", C.R.S. § 18-3-104(1)(a)) - just like aggravated vehicular unlawful termination of a pregnancy is under article 3.5. So, "A Voice for Brady" and proponents of Amendment 67 want to claim that the current law isn't fetal homicide law - yet it in fact hands out punishments handed out under Colorado homicide law, for homicide!

The crime of vehicular homicide in Colorado is described in part as "If a person operates or drives a motor vehicle while under the influence of alcohol ... and such conduct is the proximate cause of the death of another, such person commits vehicular homicide." (C.R.S. § 18-3-106(1)(b)(I)). Vehicular homicide is a class 4 felony, or class 3 when under the influence. You could make a case that aggravated vehicular unlawful termination of a pregnancy should therefore be made a class 3 felony in line with the regular aggravated form of vehicular homicide, but you don't need to change the definition of person in the Colorado Constitution to do so.

Article 3.5 is a fetal homicide law in everything but name. What is more important - calling it fetal homicide, or punishing people appropriately for causing the death of a fetus?

Exactly.

And isn't this about justice for unborn children anyway? Isn't that what "A Voice for Brady" and pro Amendment 67 groups are claiming? Then why are they quibbling over names for a law, when what matters is what the law does?

Brady's life was indeed worth more than $2,000, who would argue otherwise? Colorado law recognizes that it was indeed potentially worth as much, or more accurately almost as much, as any full grown adult killed under similar circumstances. It's terrible that this law was not in place to bring justice to Ms. Surovik - my wife and I have been through 4 miscarriages now, I get what losing a pregnancy is like. Believe me when I say the only thing worse would be losing a child at any point after birth. The only thing that helps, is that those pregnancies weren't yet a person.

The tragedy is that this is now being used deceptively to try to restrict women's reproductive rights by implementing bad laws.

I don't know if you've been keeping track, but that's lie number 8 from this one little piece on the "A Voice for Brady" website.

OK, they lie. Got it.

I believe that this is one of the most offensive and deceptive bills to ever be passed in Colorado.

That is what "A Voice for Brady" says about article 3.5 of the Colorado Criminal Code.

Who is really being offensive and deceptive here?

Article 3.5 does exactly what they claim they want - but they claim it doesn't do anything of value AND they claim it protects doctors who kill women whilst performing abortions, when in fact it does nothing of the sort!

Who is really being offensive and deceptive here?

Amendment 67 could (there would almost certainly be lengthy constitutional legal battles over using it in this way) be used to attempt to ban abortion and certain forms of contraceptive here in Colorado - some of its supporters argue that outright - but "A Voice for Brady" says this is about justice for children like Brady and nothing to do with abortion, yet they claim the opposition to it is only from pro-abortion advocates and paint this as an Amendment to protect women from unscrupulous abortion doctors.

Who is really being offensive and deceptive here?

"A Voice for Brady" is distorting a personal tragedy to suit a religious and political agenda.

Who is really being offensive and deceptive here?