North Dakota Is Quietly Preparing To Enact The Most Radical Abortion Measure In The Country

CREDIT: AP Photo/Lauren Victoria Burke

Anti-abortion demonstrator stands outside the Supreme Court in 2007, after the court's decision on partial birth abortion.

In less than two weeks, North Dakota voters will head to the polls and cast their ballots on a radical effort to overhaul the state’s constitution and redefine legal personhood in a way that includes fertilized eggs. Polling indicates that the fight over Amendment 1 will be close, potentially making North Dakota the first state in the country to enact a radical “personhood” measure — something that abortion opponents have been attempting to do for four decades. But hardly anyone is talking about it.

In September, reporting on the ballot measure for Cosmopolitan, writer Robin Marty described Amendment 1 as “the abortion amendment America forgot.” When she talked to residents in North Dakota, most of them had never heard of it.

“I do find it really interesting that this has kind of flown under the radar during the election season,” Elizabeth Nash, the senior states issues associate at the Guttmacher Institute, told ThinkProgress in an interview. “Certainly, I know people are very focused on the U.S. Senate and the governors’ races, but I’m not quite sure why this issue hasn’t come up more. If this passes, it will have a ripple effect — certainly in the state, and maybe even further.”

That wasn’t the case when the North Dakota legislature first passed this legislation in March 2013. When lawmakers voted to put Amendment 1 on this year’s ballot, there was a widespread understanding that the measure was designed as a direct challenge to Roe v. Wade. The bill’s sponsor was frank about that ultimate goal, and reproductive rights groups were outraged about the passage of such an extreme attack on women’s legally protected right to choose.

Fast forward to this fall, however, and there doesn’t appear to be as much concern about North Dakota. Most of the national attention has been focused on candidates in Colorado who are attempting to change their positions on personhood, as well as some discussion about whether supporting personhood spells doom for Republicans running in races across the country this year.

Amendment 1 may be flying under the radar because it doesn’t specifically mention abortion, birth control, or conception. It’s an extremely vague measure, saying only that “the inalienable right to life of every human being at any stage of development must be recognized and protected.” In fact, its supporters have pointed to the broad language as proof that Amendment 1 isn’t a personhood measure at all, claiming it has nothing to do with redefining life.

But according to Nash, who tracks state-level abortion legislation, Amendment 1 uses pretty much the same language as the other personhood initiatives that have previously come up for a vote in Mississippi and Colorado. It has what she calls the “hallmarks” of fetal personhood measures: it’s seeking to amend the constitution, and it says that life starts at conception. The only thing that’s changed is the messaging strategy around it, since Amendment 1 proponents used to make more explicit connections to abortion.

“This shift in the language is because these measures have been defeated,” Nash said. “They’re moving more toward this incremental language, because when they come out and say the goal is to ban abortion, they lose.”

Personhood supporters have recently failed to advance measures in states like Nevada, Oklahoma, Virginia, and Florida. In 2011, personhood was resoundingly defeated in Mississippi, somewhat of a surprise for one of the most conservative states in the country. Colorado residents have voted down personhood twice, and will likely do for for a third time when the issue is on the ballot yet again this fall.

Nonetheless, the fight for personhood — largely driven by Personhood USA, a far-right group based in Colorado that defines their movement as the “the cultural and legal recognition of the equal and unalienable rights of human beings” — has shown no signs of giving up.

Ever since Roe v. Wade first legalized abortion, there’s been a push to enact constitutional protections for fetuses. Beginning in 1974, congressional committees began debating the “Human Life Amendment” to protect life “at every stage of biological development.” That movement was championed by national lawmakers including Sen. Jesse Helms (R-NC) and Rep. Henry Hyde (R-IL) — whose other efforts in this area resulted in federal bans on insurance coverage for abortion that still bear their names — and fizzled out in the mid 1980s. Now, it’s been reinvigorated in the states. And if North Dakota becomes the first major success story for personhood supporters, it could embolden their efforts to bring it to other areas.

“One thing that we’ve all noticed over the past couple years is that even in defeat, supporters of these measures are very tenacious and don’t give up,” Nash said. “I wouldn’t be surprised to see personhood measures in Alaska, Florida, or South Carolina if this ballot initiative becomes law. We would certainly see it again in Mississippi, I would think.”

Ironically, even though Amendment 1 proponents say that the ballot measure isn’t a threat because it doesn’t actually use the word “abortion,” that ensures it will be particularly far-reaching if it becomes law. Since it’s not narrowly tailored to reproductive health, it would essentially impose a new definition for personhood in all of the laws in the state. That could impact policies ranging from inheritance rights, to end-of-life care, to in vitro fertilization.

Doctors have already said that Amendment 1 would likely force the state’s only in vitro fertilization clinic to close, and infertility experts have come out against the measure for that reason. The state’s AARP chapter has expressed concerns that the measure would interfere with “personal and family decisions.” Some medical groups have wondered whether it could impact organ donation. And the North Dakota Medical Association, a group that represents doctors practicing in the state, officially opposes Amendment 1 because of “the imprecise wording and unknown consequences.”

Nonetheless, according to recent polling, the ballot initiative is expected to pass. About 50 percent of voters indicate they support Amendment 1, and another 17 percent are undecided. Many people may not exactly realize what’s at stake in November. “We are voting about abortion?” one North Dakotan responded when Cosmopolitan asked her about Amendment 1. “The media haven’t said anything.”

The activists working to oppose Amendment 1 didn’t want to comment on the national media coverage of the issue, but maintained optimism that the people in their state have become more aware of the measure recently thanks to local press. “North Dakota voters have been starting to tune in to what the real consequences could be if Amendment 1 should pass, and they are concerned about the potential of courts nullifying living wills,” Karla Rose Hanson, the spokesperson for North Dakotans Against Measure 1, told ThinkProgress.


New polling conducted by professional polling firm DFM Research suggests that Hanson’s group is helping to make a difference. Support has dropped to 39 percent of voters, while 45 percent say they’ll reject the measure. A large portion, 16 percent, say they haven’t made up their minds yet. Amendment 1 “looks to be a close one come November 4,” according to Valley News Live.

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