On Election Day, Colorado residents will determine who gets to be a person. They’ll vote on Amendment 62, which defines a person as a human being from the beginning of “biological development.” That’s code for conception. The measure would grant fertilized eggs the right to life, liberty, happiness, and due process of law, effectively banning abortion, even in the case of rape or incest, and potentially outlawing IVF treatment, vaginal birth after Caesarean section, and some forms of birth control. Authorities in other states have experimented with treating viable, late-stage fetuses as legal persons, opening the door to homicide and other criminal charges against pregnant women who endanger the health of their fetuses by refusing to undergo C-sections or causing a miscarriage.
Colorado has gone down the fetal personhood road before. In 2008, voters rejected a nearly identically worded measure by a 3-1 margin. What’s new this time is a provocative radio campaign that tries to equate pregnancy with owning a slave.
Over a background of ominous horns and patriotic fife-and-drum music, an actor posing as a 19th-century African-American slave urges listeners to vote for 62:
I’m George Stevens and I’m a person. I was held as property as a child. … But folks like you helped me escape North to freedom and in 1864, I joined the infantry to fight for my country. I fought so all slaves would be recognized as persons, not property. And we won. But today in Colorado, there are still people called property—children—just like I was. … This November, vote “yes” on Amendment 62. Amendment 62 declares unborn children persons, not property. And that’s the America I fought for.
The radio spot aired on religious and conservative stations, but when the national news caught wind of it at a Personhood Colorado press conference, a number of African-American and women’s groups took offense. Even the Colorado NAACP, traditionally silent on debates over reproductive health, came out publicly against the amendment this month. In responding to the ad, some organizations tried to turn the slavery analogy on its head. For them, it is pregnant women, not fetuses, who are at risk in the abortion wars. “As an African-American woman, I find it disrespectful and dishonest,” said Loretta Ross, national coordinator of SisterSong Women of Color Reproductive Justice Collective, “We’re talking about re-enslaving women and using slavery as the analogy. It’s insulting.”
You can see this ad as part of a broader strategy of co-option of African-American history by the anti-abortion and conservative movements. In June, anti-choice activists enlisted Martin Luther King Jr.’s niece Alveda to lead faux Freedom Rides as a public demonstration in support of “freedom for the unborn,” whom they believe to be discriminated against due to “age and place of residence” in the womb. And last February, another group launched a billboard campaign in Georgia calling black children an “endangered species” and claiming the fault lay with disproportionately high rates of abortion among African-American women. Earlier this year, Arizona Congressman Trent Franks linked abortion to slavery while perennial GOP presidential hopeful Mike Huckabee routinely drops the S-bomb when denouncing abortion. Glenn Beck’s choice of the anniversary of Martin Luther King Jr.’s “I Have a Dream” speech to stage his own rally in Washington, D.C., may have a place here, too. Conservatives are appropriating the inspiring language and moral rectitude of the civil rights movement and putting it to their own particular use. Amendment 62’s sponsor makes clear that the hope is to attract African-Americans and stoke guilt among whites. Its Twitter feed includes the admonition: “UR betraying the black race!”
Maybe the only thing that’s surprising about the analogy between abortion and slavery is that it originated in the ivory tower and took a while to spread to the grassroots. After the Supreme Court legalized abortion in 1973, Catholic legal scholars made explicit connections between Roe v. Wade and Dred Scott, which legitimized the idea of people as property and ruled that blacks were ineligible for U.S. citizenship. Law review articles pointed out that like the Dred Scott ruling, Roe relied upon what the court calls substantive due process—a doctrine that extends the constitutional due process protections to rights that have nothing to do with procedure, like property or free speech. In both cases, critics claimed, courts fabricated new constitutional rights for one group by denying the personhood of another. The idea was that since Dred Scott marked the court’s first go at substantive due process, it was the original precedent for Roe. By the early 1990s this argument was firmly entrenched in mainstream conservative legal thought, appearing in the writings of prominent scholars like Robert Bork. The oft-repeated claim even made its way into Scalia’s partial dissent in Planned Parenthood v. Casey, the case that reaffirmed a woman’s constitutional right to obtain an abortion.
But as George Mason University law professor David Bernstein points out, by the time Dred Scott came around, invoking due process for nonprocedural rights was well-trodden territory both in state courts and the public platforms of national abolitionist groups like the Liberty and Free Soil parties. In fact, famed orator Daniel Webster employed a due process argument when as a lawyer he argued before the Supreme Court in a landmark 1819 case, and the justices relied on the doctrine a few years before Dred Scott in an intellectual property suit. Conservatives love to tar Roe with the dreaded Dred Scott brush. But since the early 20th century, it has been substantive due process that has allowed the Supreme Court to apply the Bill of Rights—including the Second Amendment’s right to bear arms—to the states. From a legal standpoint, there is no meaningful link between legalizing abortion and condoning slavery.
Is the tactic of linking abortion to slavery working in Colorado? So far, it doesn’t appear to be. While lone African-American activists like Pastor Walter Hoye stump for Amendment 62, their audiences—like the amendment’s supporters in general—remain predominantly white. This was true even when Hoye spoke at a large black church in Denver, according to Colorado Right to Life Vice President Leslie Hanks. Maybe that’s why Amendment 62 supporters turned up the dial on extremist rhetoric last week and ran this disturbing ad casting Obama as the Angel of Death. If you can’t win, you can always fear-monger.