By Ryan Johnson on Oct 19, 2014
As printed in the Fargo Forum
Still, supporters say it has a limited purpose: to protect the abortion restrictions already on the books in North Dakota.
Now, the matter is in the hands of voters who will decide if this measure will be approved Nov. 4.
Measure 1 got its start in 2013, when Sen. Margaret Sitte, R-Bismarck, and co-sponsors brought Senate Concurrent Resolution 4009 to the Legislature for consideration to be put on the 2014 ballot. If approved, the amendment would add to the state’s constitution: “The inalienable right to life of every human being at any stage of development must be recognized and protected.”
It was originally intended to be a “human life amendment,” Sitte said, and it still is. But that intention shifted following Judge Wickham Corwin’s 2013 ruling that a 2011 law approved by legislators that would have outlawed one of two drugs used in nonsurgical abortions violated the state and U.S. constitutions. The state has since appealed that ruling to the North Dakota Supreme Court.
“As other people started looking at Measure 1, they started realizing this could be a vehicle to stand up to judicial activism, and that whole argument really carried weight in getting it passed in the Legislature,” Sitte said.
Legislators approved four new restrictions on abortion during the 2013 session, including a ban on getting the procedure 20 or more weeks into pregnancy and a ban on abortions based on gender or genetic defects. Several previously passed regulations also remain in effect.
The resolution that put Measure 1 on the ballot was approved by a 26-21 vote in the Senate 26-21 in February 2013, and passed the House 57-35 the following month.
Sen. Judy Lee, R-West Fargo, said she voted against the resolution then – and opposes the measure now – because its “ambiguous” wording could cause consequences in areas far beyond abortion, including access to in vitro fertilization (IVF) and being able to dictate one’s own end-of-life health care decisions.
“Both of those are two different ends of the life spectrum, but they’re both very important ones,” she said. “If the measure fails, the strong restrictions that we already have on abortion will remain in place, the ones that have been passed that have been challenged in court and overturned will still be overturned, and everything will be the way it is right now.”
The two main coalitions working on Measure 1 – proponents ND Choose Life and opponents North Dakotans Against Measure 1 – released papers in recent weeks signed by experts, advocates and others taking on the legal questions about what the measure would do if approved by voters.
Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference and a member of ND Choose Life, said it would clarify that the right to life clause already in the state’s constitution applies to all stages of development, allowing the Legislature to pass laws to “protect human life” to the extent possible under the U.S. Constitution.
There are many reasons voters shouldn’t be concerned about Measure 1 affecting end-of-life decisions, Dodson said, including it’s a constitutional amendment, not a statute, and such amendments are “rarely” considered self-executing by the state Supreme Court.
“That is, they cannot create new crimes or new statutes to be enforced, and they can’t mandate the Legislature to do something, nor can they repeal by implication an existing statute unless there’s a direct conflict which cannot be resolved,” he said. “This doesn’t meet those criteria.”
It’s instead considered to set “general objectives,” similar to an amendment in 2000 protecting the right to hunt, he said, and would allow existing statutes governing end-of-life care, infertility treatment and abortion to continue to be the law of the land.
Concerns about its impact on access to infertility treatment or abortion are unwarranted, Dodson said, because the amendment would need to define life as beginning at conception to be enforceable on those issues – something he said it doesn’t do.
“It can’t ban abortion because of the federal rules anyway, so abortion is not the issue,” he said. “The issue of Measure 1 are those laws that affect abortion, such as parental consent, waiting periods and things that the U.S. Supreme Court has said are constitutional.”
But Steven Morrison, an assistant professor of constitutional law at the University of North Dakota’s School of Law who researched the issues for a report released by North Dakotans Against Measure 1, said it’s an “abject failure” of writing the original intent into legislation.
“I perfectly understand that they have a moral position and that protecting life is important to them, and indeed it’s important to me as well,” he said. “What they don’t understand is you have to translate that interest in protecting life into legal language which can be measured and fair and won’t harm people, and Measure 1 is anything but nuanced.”
Morrison said the “vague” language will affect far more than abortion restrictions. Unlike most amendments that specify what the government cannot do, such as enter a home without a warrant, Measure 1 would set a positive constitutional right, he said – meaning it requires the government to do something.
In this case, he said that requirement is to protect the right to life, which could open the door to the government needing to ensure residents’ access to things like clean air and water and treatment for cancer and other diseases. No other state constitution imposes this “positive duty” to protect life, he said.
“Measure 1 has the potential for altering that relationship between the government and citizens, and requiring the government to do a whole lot to protect people’s right to life,” he said.
He said it’s also arguable Measure 1 actually is self-executing and could override current laws without additional legislation because it doesn’t contain “as provided by law” language making it clear it’s in the realm of legislators.
Either way, he said it doesn’t matter what proponents intend for Measure 1 to do because the interpretation would ultimately be up to potential court action and rulings.
“We readily admit that this is up in the air,” Morrison said. “I’m busy saying the measure could do this, the measure could do that, here’s my legal analysis why, and that’s the fundamental problem with the measure. The proponents are simply saying it won’t have any bad effect, period.”
The three physicians now offering IVF in North Dakota, who all practice at the Sanford Reproductive Medicine Clinic in Fargo, have said Measure 1 would make it “impossible” to continue offering the treatment here.
Several national reproductive health organizations have released statements opposing Measure 1 because of these concerns, while the North Dakota Medical Association told its members Oct. 8 that it is against the amendment because of its “unknown effects on the patient-physician relationship.”
Roe v. Wade challenge?
Measure 1 has earned national attention since legislators approved the resolution last year because it would be the first of its kind if approved.
North Dakotans Against Measure 1 reported more than $1.4 million of contributions as of Friday. The vast majority, $1.3 million, came from Planned Parenthood groups across the country, including nearly $750,000 from the organization’s action fund for Minnesota, North Dakota and South Dakota.
Planned Parenthood doesn’t operate a clinic in North Dakota.
ND Choose Life, meanwhile, reported more than $825,000 in contributions as of Friday, with the biggest contribution of $286,000 from the North Dakota Catholic Conference.
Janne Myrdal, chairwoman of ND Choose Life, said the opposition’s finances show Planned Parenthood is afraid of North Dakota becoming a “leader” on abortion restrictions following Planned Parenthood v. Casey, a 1992 Supreme Court decision that upheld Roe v. Wade but also allowed states to regulate abortions to protect the mother’s health and life of the fetus.
More than 200 regulations or restrictions have been passed in the states since then, something she said has made Planned Parenthood “scared” of what Measure 1 might mean in the future.
“They’re concerned about other states taking up that mandate from the Supreme Court and saying, ‘Ok, we are going to limit this, we are going to regulate and we are going to protect our women and children,’ ” she said, adding it’s “not just North Dakota” they’re worried about.
But Dina Butcher, chairwoman for North Dakotans Against Measure 1, said Planned Parenthood’s investment instead shows concern about what could become the nation’s first personhood amendment.
“When you talk about personhood, the whole country is looking at this because if it passes in North Dakota, it will cost the taxpayers huge amounts of money to take it all the way to the Supreme Court,” she said. “It’s a foothold, and they’re trying to get a foothold in one state that they can leverage into the whole Roe v. Wade repeal.”
Sitte said Measure 1 is a human life amendment, not a personhood amendment that would instead explicitly define life as beginning at conception.
Still, Personhood USA, the Colorado-based group pushing for such amendments, testified in favor of the resolution during the 2013 legislative session, and refers to it as the first personhood amendment approved by a legislative body on its website.
Previous personhood amendments were defeated by voters in Mississippi and Colorado in recent years, and a new amendment will be on the Colorado ballot this November.
Measure 1 wouldn’t ban abortion entirely on its own, Sitte said. But during testimony on Jan. 29, 2013, before the resolution putting it on the ballot was approved, she told lawmakers the measure was meant to take on the 1973 U.S. Supreme Court ruling that found the 14th Amendment’s right to privacy under the due process clause included a woman’s decision to have an abortion.
“This amendment is intended to present a direct challenge to Roe v. Wade,” she said during that 2013 testimony, a statement she told The Forum on Thursday she no longer supports.
“That was probably a misstatement,” she said. “I don’t think that’s going to happen. I don’t see it that way anymore. But it’s going to be interesting to see how it plays out. I don’t know if anybody really knows specifically. All I do know is it is a broad guarantee of the inalienable right to life that goes to the North Dakota Constitution.”