Misguided “Personhood” Initiatives

In a number of states, pro-lifers are sponsoring what they call “personhood” initiatives — either legislation or state constitutional amendments that they claim will overturn Roe v. Wade and grant legal protection to the unborn. Unfortunately, this is a well-intentioned but legally and tactically misguided strategy.

We need to recall the state of the law. The Supreme Court held in Roe v. Wade, and has upheld in every subsequent abortion decision, that an unborn child is not a “person” who is entitled to protection by the Fourteenth Amendment to the United States Constitution, and that a woman’s right to an abortion is protected by that same Fourteenth Amendment. Obviously, I believe that this is an awful miscarriage of justice, but that’s the law as it stands.

Because the federal constitution is the supreme law of the land (see Article VI of the Constitution), the Supreme Court’s rulings on abortion override all state laws or constitutions.  Congress cannot overrule a Supreme Court decision interpreting the Constitution. Nor can a Supreme Court decision interpreting the federal constitution be overruled by state constitutional amendments or legislation. Only a federal constitutional amendment (e.g., the Human Life Amendment) or a subsequent Supreme Court decision can overrule the holding in Roe that an unborn child is not a “person” within the meaning of the Fourteenth Amendment.

As a result, “personhood” bills like the federal “Sanctity of Human Life Act” or the “Life at Conception Act” simply cannot accomplish what their sponsors desire — they cannot overturn Roe v. Wade by simply defining an unborn child as a “person” under the Fourteenth Amendment.  The same holds true for similar state constitutional amendments that are being proposed around the nation.  I wish it were otherwise, but there it is.

We also have to consider the state of the judiciary. Some people are proposing these “personhood” initiatives as a way of starting a case that will challenge the Supreme Court to overturn Roe. The problem with this approach is two-fold.

First, no justice who has ever sat on the Supreme Court has ever given any indication that he or she would hold that an unborn child is a “person” under the Fourteenth Amendment. In fact, only two justices currently on the Court have ever said that they would overrule Roe on any grounds (Justices Scalia and Thomas). Even if we assume (without any factual foundation) that Chief Justice Roberts and Justice Alito would also vote to overrule Roe, there’s no indication that they would support the “personhood” theory.  In any event it would still not be enough — you need five votes, and there just isn’t another Justice on the Court who would vote to overrule Roe. Second, the result of this strategy will almost certainly make things even worse.  Instead of overturning Roe, a case involving a “personhood” law would likely produce an even stronger Supreme Court decision upholding the right to abortion, either by affirming Roe on the non-personhood of the unborn, or (God forbid!) by holding that abortion rights are necessary to ensure women’s equal status in society, based on the Equal Protection Clause of the Fourteenth Amendment (Justice Ginsburg’s favorite rationale for abortion rights).

On the whole, I believe that these “personhood” initiatives are a distraction from practical, achievable ways that we can reduce abortions and increase legal protection for the unborn. Parental notification, limits on public funding, and fetal homicide/assault bills are far more profitable ways for the pro-life movement to spend our time. We have to use these kinds of bills to build an authentic pro-life culture, so that a real Human Life Amendment, or a pro-life Supreme Court, becomes politically possible.

So, while I fully respect the intentions of those who promote “personhood” bills or amendments, I would not endorse or support them, or encourage anyone else to do so.

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4 Responses to “Misguided “Personhood” Initiatives”

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  2. Anna says:

    This is pretty wrong, for several reasons. First, the goal of personhood organizers that I’ve spoken to personally is not to address the supreme court at all, but to call upon states to enforce Personhood measures passed by the state, applying the Personhood rights to several sections of each state constitution, thus creating the social tension that’s needed to finally end abortion.

    You call regulating abortion “practical and achievable” – why have they not been achieved thus far? Haven’t we been trying those regulations for the past 37 years, with no end to abortion in sight? That does not seem practical OR achievable. That seems like an incredible waste of time and money. Why not try something new?

    Besides, ending abortion is the goal of personhood, and it is not the goal of the regulatory laws. Those laws say that if you meet certain requirements, you can still kill your baby afterwards.

    Personhood also has the added benefit of educating millions of U.S. citizens on the humanity of the preborn child, which no other campaign has accomplished as successfully. Personhood’s greatest victory is the lives saved simply by teaching the public that life begins at the moment of biological beginning. If you are pro-life, you can’t deny that saving human lives is a great thing.

  3. Ed:

    The intent of the Personhood movement is not to overturn Roe, nor to introduce a case with the hopes of doing so, nor to challenge the constitutionality of the ruling.

    We intend to elevate social tension and someday provoke a confrontation between a pro-personhood state governor who will assert that the God given right to life cannot be abridged by any governmental authority. This is a battle we are called to provoke. The innocent blood cries out for justice.

    Sadly your generation appears to be slaves to the idea that we simply can’t end abortion legally. Our generation has realized that regulating the murder of children is wrong, (and in many cases the state and local regulations that have been put in place are more solid pro-abortion law that Roe itself). Do you not realize this now that it has been plainly pointed out to you?

    The time has come for abortion regulators to step aside and let a new generation, not afraid, into the land.

  4. Ed Mechmann says:

    If the intent of the personhood initiatives is to provoke a modern-day nullification crisis, then you can count me out. No good will come from the kind of lawlessness that is being proposed.

    The attitude expressed towards those of us who are trying to build a culture of life brick by brick shows yet another reason that these initiatives are bad for the pro-life movement. As the Lord said, a house divided cannot stand.