If a state amendment recognizing the personhood of the unborn child came before the U.S. Supreme Court today, it wouldn’t have a snowball’s chance of being constitutionally approved by this court. Yet this is the legal theory touted by the personhood movement that is sweeping certain parts of the pro-life movements. It is the silver bullet theory for killing Roe v. Wade.
Here is the amendment as it is now being promoted in California:
According to the California Civil Rights Foundation, which is leading the personhood effort in that state, “If (the amendment) passes, the California Human Rights Amendment will amend the California Constitution and define human rights commencing at biological development (e.g. conception). A pre-born child in the womb, of any age, will have the same rights and full protection under law as adults.”
Something like this was tried in Colorado a few years ago and was trounced in that largely prolife state 73 percent to 27 percent. Similar efforts are underway in seven states with more to come. And personhood signs and banners were all over the recent March for Life.
There is something very appealing about the rhetoric of the personhood movement. As Senator Sam Brownback says, “We are either persons or property.” If the unborn child is a person, then she has certain rights, chief among them the right not to be killed. Using this language, Katy Walker of American Life League had the frequently frothing Dylan Ratigan of MSNBC somewhat tamed and even charmed.
Personhood advocates, good-hearted people, say this is a way to galvanize the pro-life movements. And they’re right. There is something exciting about entering into a fight that one could win, at least in a limited sense. Advocates say, correctly, that the personhood movement educates the public in new and gripping language and at the same time gives pro-lifers something palpable to do. But there is a train wreck coming. Standing on the tracks way out there is Roe v. Wade.
If perchance one of these amendments would pass into law in some state, it would be challenged in court and at some point the issue would be brought before the Supreme Court. On the current court, there are likely two votes to overturn Roe right now, another two who might go that way given the right set of circumstances, and another very solid bloc of five Justices who have shown no interest in overturning Roe.
Last year at a pro-life meeting there was a private debate on the personhood amendment between a lawyer from Georgia who was promoting the idea in his state and National Right to Life’s general counsel James Bopp, who opposes the idea. At the end of all the legal give and take, the argument from the personhood side boiled down to divine intervention. They are counting on God to change the heart of a single justice, Anthony Kennedy, who has given no indication that he thinks Roe ought to go.
There is a great appeal to working on something that will be “The Thing That Kills Roe.” There is a natural yearning to get this thing done and get it done now. The personhood movement also answers the frustration that naturally comes with such a long fight. Jeanne Head of National Right to Life has said that, after Roe, she assumed the fight to overturn would last no more than a few years. Ann Scheidler of the Pro-Life Action League says much the same thing.
The Chinese philosopher Sun-Tzu said the most dangerous action for an army is to overreach. To overreach is to be exposed to even greater danger than usual, and not just to lose, but also to suffer perhaps fatal consequences. Or at least to end up further back than where one started.
If a personhood amendment comes before this court, a new and terrifying decision may put the pro-life movement back a quarter century or more. At the very least it could uphold Roe for a third time. At the worst, the court could strike down years of sensible, incremental advances that have had the effect of changing the hearts and minds of millions of Americans.
As pro-life legal scholar Hadley Arkes has said, “The partial-birth abortion case has shown that the court is open for business and is likely to sustain even more restrictions.” Echoing Arkes, William Saunders of Americans United for Life compared Roe to a Christmas ham, “Each slice makes it smaller and smaller until it is no more.” This is hard to hear for those who are eager for this nightmare to end.
In World War II, the U.S. Army did not start in Berlin; it ended up there. First it had to go through D-Day, the French hedgerows, the Battle of the Bulge, and much else. We are getting there ourselves in the pro-life ranks, but we aren’t there yet. Personhood gets us no closer and, regrettably, may put us further back.