Matt Evans: Measure 1 Opponents Unwilling To Tell You Why They Really Oppose It


The text of Measure 1 reads as follows:

The inalienable right to life of every human being at any stage of development must be recognized and protected

Suppose for a moment that this text was modified to say, “however, this amendment cannot be in any fashion construed to impact current or future medical practice regarding end of life care”.

Do you think that the current vocal opponents of Measure 1, who cite risks to end of life care providers and practices, would begin to support the measure; their fears allayed?

I don’t.

The supporters of Measure 1 are very candid about what it is about and what it is designed to do.  The purpose of the measure is to remove the possibility that a state judge can rule that there is a pervasive and unlimited right to have an abortion in this state.  The purpose is to ensure current (and perhaps future) state laws about abortion are legally constitutional at the state level.

The opponents of Measure 1 don’t seem to be willing to actually engage Measure 1 on this issue itself.  That would appear to be because opponents of Measure 1 generally seem to support an unlimited right to an abortion.  That is, they oppose any legal restriction on abortion whatsoever.  This is not a politically popular position in North Dakota or even in the broader United States.

Knowing that the actual issue of judge-granted unlimited abortion is a political loser, North Dakotans Against Measure 1 (NDAM1) and its allies are staying away from the actual issue.

Instead, NDAM1 and its allies will continue to make unsubstantiated claims about what else the bill might do.  This is important to understand.  This technique is known as “spreading FUD”, where FUD stands for “fear, uncertainty, and doubt”.  If NDAM1 succeeds in convincing the public that the problem with Measure 1 is that there might be lots of bad effects, they will have succeeded, whether or not there will be any bad effects.  By focusing the conversation on impossible effects of Measure 1, NDAM1 doesn’t have to make its case about the actual effects of Measure 1.

Let’s talk a little bit about how constitutions work.

Adding Measure 1 to the state constitution does not make anything currently legal illegal, and doesn’t make anything currently illegal legal.  If I add the phrase “The Sky Is Pretty And Should Be Enjoyed” to the state constitution, all of us understand that nothing actually changes.  The mere act of adding these words to the state constitution will not cause a special Sky Enjoyment SWAT team to spring forth from Bismarck and arrest people who aren’t playing outside.

However, if the legislature were to subsequently propose and pass a law requiring all children to play outside 2 hours a day, a judge might subsequently find that law to be constitutional, because the law agrees with our new constitutional language.

Please let that sink in.  If Measure 1 passes, it will change how future court cases that make determinations of constitutionality of existing laws are decided.

If nobody challenges any law related to Measure 1 in state court, then Measure 1 will never have any effect.

Some people have asked: “If Measure 1 does nothing, why do we need it?”

As I said – Measure 1 only does something if a court case tests the constitutionality of one of our state laws.  That is precisely what is happening, and precisely what Measure 1 is about.  North Dakotans recently passed a number of laws that place restrictions on abortion and on providing abortions.  None of these laws appear to be violations of federal law, because none of them constitute a general prohibition on abortion.

These state level restrictions are often reasonably benign – for instance, requiring that a doctor that wishes to perform abortions be allowed to practice medicine at a hospital.  Or, preventing clinics from operating on minors without parental consent.

People who assert that there should be an unlimited right to abortion are challenging laws like these in North Dakota courts.  Measure 1’s intent is to stop these state level challenges.

Furthermore, if North Dakota or Measure 1 attempted to create a complete legal prohibition on abortion, it would be in violation of federal law.  That’s not what Measure 1 does.

Measure 1 is not a new law.  It does not control you and it does not control your doctor.  Instead, it controls judges.

NDAM1 and its allies are willing to tell you just about any reason why you should oppose Measure 1 – except their actual reason for opposing it.