Wednesday, September 16, 2009

Why "Personhood" Laws Will Not Affect Roe

Clark D. Forsythe, senior counsel at Americans United for Life, pours cold water on the myth that "personhood" laws create an opportunity for a direct challenge to Roe v. Wade:
... Basing state personhood amendments on extrapolations of Blackmun’s language in Roe is futile. This does not mean that establishing some form of legal personhood in the states is not a worthy goal. It simply means that (because of our system of federalism) it will not — it cannot — establish 14th Amendment personhood or set up a test case to overturn Roe.

First, not one justice on the current Supreme Court supports the proposition that the unborn are protected as “persons” within the meaning of the 14th Amendment. Not one. All have rejected it, explicitly or implicitly.

Second, these proposals would be better designed if they followed the Missouri statutory preamble enacted in the 1980s...

Since the U.S. Supreme Court reviewed the Missouri preamble in the 1989 Webster case and found it constitutional, the preamble has been applied by Missouri courts to extend protections for unborn children in non-abortion situations.

Third, state legislation concerning fetal development will not supply facts that the justices are not already aware of. Justice Blackmun clearly thought he understood the “well-known facts of fetal development” in 1973. Moreover, the two partial-birth-abortion cases in 2000 and 2007 amply supplied facts about the humanity of the unborn and what abortion does to the unborn child. Even the most pro-abortion justices acknowledged this by noting that D&E (dilation and evacuation) abortions are no less brutal than D&X abortions. The Supreme Court’s majority opinion in the 2007 Gonzales case used the words “kill” or “killing” at least 18 times to describe abortion. The problem is not that the justices do not understand, but that they do not care.

Fourth, legislation is needed that will protect the unborn, but there’s no reason to believe such legislation will be an effective vehicle to challenge Roe, given the Court’s current composition. And while public education about fetal development will always be important, the notion that such facts will have a significant impact on the current justices is based on a profound misunderstanding of why most of those justices support Roe.

The emphasis on the unborn child completely overlooks the fact that the Court’s rationale for the abortion “right” shifted dramatically in the 1992 Casey decision, where it became a sociological rationale that women need abortion as a backup to failed contraception. Facts about fetal development have no bearing on this sociological rationale. The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women...


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At 9/16/2009 10:38 AM, Blogger Father Martin Fox said...

Well, the article doesn't directly address the merits of pursuing federal legislation--which has been introduced over many years--to declare that personhood begins at conception under the 14th Amendment.

Certainly, states have no ability to explicate the meaning of the 14th Amendment to the federal Constitution, but that doesn't change the fact that Congress clearly can.

Also, the author fails to appreciate the value in pursuing such legislation quite apart from whatever eventual legal case may arise in the future. Namely, to provide an opportunity to see who truly are the good guys and the bad guys in Congress.

The author is badly wrong in thinking that such legislation somehow harms the efforts to advance other good legislation. The truth is almost exactly the opposite.

By advancing this legislation, it makes it more likely that other good--but less ambitious legislation will be enacted. How? Two ways:

> When politicians receive pressure from prolifers to support "personhood" legislation, if they don't wish to endorse it, they are more likely to look for some other bone to throw prolife constituents. None but the hard-core pro-abortion pols will respond with a thumb in the eye; instead, they'll respond with something.

> By advancing this issue, we are more likely to an increase in really solid prolife legislators who really care. And that's what we need more of to enact useful legislation.

The original article has some merit on legal analysis, no doubt; but is wrong-headed on political strategy, I'm sorry to say.

At 9/16/2009 4:15 PM, Blogger Colorado Conservative said...

1. Clark Forsythe is not Catholic and therefore does not understand 2270 of the catechism, which directly calls for laws that protect the preborn as persons. He also doesn't understand the need to fight abortifacients.
2. Clark Forsythe makes 150,000 a year by regulating abortion.
3. Clark forsythe does not understand Federalism or the 10th amendment.
4. At least 4 supreme court justices believe abortion is not in the constitution, how long would Clark have us wait?
5. Roe is a Catch-22, we have to stop looking to Roe for legal stratagems and start fighting for what we believe in, personhood for the preborn.
6. Thanks to Clark Forsythe snd friends, Roe has been affirmed over 200 times, do they really expect us to believe that if personhood fails once that it will mark the end of pro-life efforts?
7. Clark Forsythe and NRLC allow the GOP to be the pro-life party while doing nothing. Notice that the only party line votes the GOP ever sticks together for are economic issues. Weak laws give politicians an easy out, and in turn prolong the killing. The blood of the babies is on all our hands, because we could do more, but it is especially on the hands of Clark Firsythe and Jim Bopp who fight other pro-lifers and do Planned Parenthood's dirty work for them.

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