North Dakota likely first state to pass personhood ballot measure

Passage could be enough to challenge Roe v. Wade

WASHINGTON, D.C. - Personhood and abortion rights ballot measures will take center stage on Tuesday as voters in three states – North Dakota, Colorado and Tennessee - seek to determine when life begins and, potentially, the role government has in limiting abortions.

Although recent polling shows that only North Dakota’s measure is likely to pass, that may be enough for personhood and right-to-life advocates.

"The proponents of this measure made it very clear that they want a definition of personhood in state law challenging the basic tenets of Roe v. Wade,” says Jessica Waters, associate dean at American University’s School of Public Affairs. “It is possible that such a measure, if passed, could be litigated all the way up to the Supreme Court, and some members of the court would be willing to uphold such laws.”

The North Dakota initiative, named Measure 1, will ask voters to amend the state constitution to define life as beginning at conception. Passage of the amendment would give “the inalienable right to life of every human being at any stage of development.”

That could mean restrictions on all forms of abortion as well as end-of-life decisions and in vitro fertilization. 

Colorado and Tennessee similarly have measures that address abortion and right-to-life on their ballots but neither look likely to pass. The Colorado measure is polling at only 32 percent support.

One reason why North Dakota’s ballot appears to have a better shot at success than those other measures is its non-specific language. The broadness of the ballot’s language leaves open the door to many challenges on abortion and gives the North Dakota legislature a lot of room for interpretation.

"The language of the amendment is pretty open. It doesn’t provide a particular policy prescription regarding abortion or anything else. It would be up to the legislature to do something with it,” says Eric Scheidler, executive director of the Pro-Life Action League. "Specifically with North Dakota, it’s to allow the state to continue to enact common sense restrictions on the absolute abortion license created by Roe v. Wade and Doe v. Bolton."

Opponents of the initiative worry that the broadness of the measure could threaten the only fertility clinic currently operating in the state because doctors could face new legal actions.

"It's [the North Dakota law] that’s dangerous from the perspective of women’s rights. Even though this law doesn’t successfully unravel anything about Roe v. Wade, it could still make abortion less widely available,” says Laurence Tribe, professor of constitutional law at Harvard Law.

North Dakota voters have made their preference on the pro-life debate clear in the past. The state has some of the toughest abortion restrictions in the country, including bans on abortions based on gender choice or genetic abnormalities and a six-week abortion ban, the nation’s first, which was later overturned by a federal judge.

Personhood amendments have been included on state ballots in the past -  in Mississippi in 2011 and in Colorado in 2008 and 2010 - but failed to pass. 

Supporters of the North Dakota measure have poured thousands of dollars into advertising for the campaign - groups like North Dakota Choose Life and support from the North Dakota Catholic Conference have been key to generating funds.

Pro-life advocates also have gotten involved, with Planned Parenthood spearheading fundraising against the initiative. According to data compiled by ProPublica, Planned Parenthood has raised almost $1.4 million against the measure. Opponents argue that Measure 1 would cause women to end their pregnancies unsafely and have a disproportionate impact on minorities and those in low income households.

“Women will not stop having abortions. They would go to other means. For low income women and women of color, that becomes a lot more dangerous; they don’t have the financial resources for easier access,” says Cristina Aguilar, executive director of the Colorado Organization for Latina Opportunity and Reproductive Rights.

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