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...