“Its effect will be unprecedented, wide-ranging, and unpredictable,” wrote Steven Morrison, a constitutional law professor at the University of North Dakota School of Law. Morrison and other critics of the amendment warn that providers of in vitro fertilization could be charged with murder; living wills and end-of-life directives could be invalidated; and the government could be forced to provide life-sustaining treatment to every resident of the state no matter what their condition.
“It's a triumph of passion over intelligence,” said Dr. Michael Booth, a cardiovascular and thoracic surgeon in Bismarck. “It's a very dangerously written measure. It's just so damn ambiguous.”
Supporters of the measure, including Catholic groups, say Measure 1 is simply an “iron dome” to protect laws that are already on the books. A legal analysis drafted by supporters said the state already has laws regulating end-of-life care and that those have been upheld as constitutionally valid. “North Dakotans should know that, no matter what the outcome of the vote on the Human Life Amendment, their right to determine healthcare decisions will be respected and that their right to be treated with dignity will remain intact,” they wrote.
Christopher Dodson, executive director and general counsel for the North Dakota Catholic Conference, which supports the amendment, rejects the argument that the measure would interfere with patients' advance directives. He said he has spent two decades advocating for end-of-life care plans. Such advance directives “don't terminate life; they don't kill,” Dodson said. “They just allow someone to die naturally, which is their right.”
Some North Dakota physicians are concerned about their own possible liability under the proposed amendment. Dr. Siri Fiebiger, an obstetrician in Fargo, wonders what would happen with complicated pregnancies where doctors may have to make a decision to save the mother's life that could endanger the fetus. “Am I going to get prosecuted because I'm taking care of the life of the mother?” she asked. “This is so vague. You can use it as you wish.”
But Jo Bogner, a member of the executive committee for North Dakota Choose Life, the main group supporting the ballot measure, said “this is about abortion.” The opponents, she added, “don't want to talk about abortion in a very pro-life state like North Dakota.”
North Dakota's Republican-controlled Legislature voted in 2013 to place Measure 1 on the ballot. If passed, it would take effect 30 days after Election Day. It was part of a number of anti-abortion bills that were enacted that year. But a “fetal heartbeat” law, which could prohibit abortions as early as six weeks into a pregnancy, was invalidated by a federal judge in April.
Measure 1 is similar to “personhood” amendments that have been considered in other states. These measures generally would extend constitutional or statutory protections to life starting at the embryonic stage. Many supporters of these measures prefer not to use that term, in part because personhood amendments have been rejected by voters in every state where they've been on the ballot, including Mississippi.
North Dakota state Sen. Margaret Sitte, a Republican who is the chief author of the legislation putting Measure 1 on the ballot, declined to answer questions about the initiative. “It's up to the voters right now,” she said.
Measure 1 appears to have a reasonable chance of passing. According to a poll released earlier this month, 50% of likely voters support the amendment, while just 33% are opposed to it. But opponents have a financial edge. As of Oct. 8, the anti-amendment campaign had raised roughly $825,000, 40% more than supporters of the measure.
Robert Wood, an associate professor of public administration at the University of North Dakota who helped conduct the poll, said opponents may yet defeat the measure. “In any kind of ballot measure, the (voters') default setting is to say no,” he said. “All the opponents have to do is show that there are a bunch of unintended consequences that are not very palatable.”
Follow Paul Demko on Twitter: @MHpdemko
