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.