Friday, December 3, 2010

Personhood Amendments: Does a Fetus Have Constitutional Rights?

Personhood Amendments
Does a Fetus Have Constitutional Rights?

I really don't like to talk about pro-life and pro-choice issues because it inflames the passions on both sides. But there's a new and startling development that must be addressed because it's gaining serious steam.

Does a Fetus have Constitutional Rights?

Over the years, pro-lifers have done an outstanding job on raising abortion awareness and in fact had majority support in lobbying Congress to ban the barbaric practice of partial birth abortion (upheld by the Supreme Court). Abortion was actually on the decline. According to polls on pro-life and pro-choice issues, the American people overwhelmingly oppose late term abortion but still support legalized early abortion. The strategy of slowly hacking away at R v W was working. R v W is bad law because it created a new constitutional right where none had previously existed and the fact that this new constitutional right was the right to murder the unborn is repugnant on many levels, legally and morally.

Nebraska is on the road to being the first state to pass a law challenging R v W by legally restricting abortion to 20 weeks or under.

Quote: "Activists on both sides of the abortion debate are carefully eyeing a Nebraska bill that's wending its way through the legislature this week. They wonder if a proposed ban might end up as the subject of the next Supreme Court abortion battle. The road to every major Supreme Court decision on a divisive social issue is littered with hundreds of hours of strategy sessions by lawyers, politicians and activists probing pending legislation to see if it has the potential to become a court challenge.

The Nebraska bill -- which seeks to make abortions illegal after the 20th week of pregnancy -- is no different. The bright-line rule is necessary because of some medical evidence that a fetus can feel pain at that stage of gestation, sponsors of the legislation say.

The legislation has drawn national attention from groups such as the Center for Reproductive Rights, which sees it as a direct challenge to Roe v. Wade..."

While the Nebraska bill is infuriating the pro-choice folks, it's pretty much in line with the aversion of the American people to late term abortion. In that sense, it's not radical. It's only radical in the sense that it's a direct challenge to R v W and a challenge that probably stands a fairly good chance of being upheld by SCOTUS. When the partial birth abortion ban arguments were held before SCOTUS, it was clear that the jurists were concerned with the pain and suffering associated with the partial birth procedure abortion. The notorious swing voter, Justice Kennedy who is Catholic, came through on that 5-4 decision (backing Robert, Scalia, Alito and Thomas). It is probably accurate to say that the “SCOTUS 5” were profoundly affected by the underlying premise of "pain, suffering, cruel and inhumane punishment" as applied to partial birth abortion procedures. Therefore, it’s not an unreasonable expectation to assume that the same concerns that nixed partial birth abortion could also be extended to include all late term abortion so long as the mother's life was protected against being forced to die while giving birth.

Now this is where the abortion issue gets very interesting and goes way beyond attempting to reduce late term abortions and convincing folks that abortion is wrong. There is a serious movement brewing in America to define human life as beginning at the precise moment of conception and that such “pre born” human beings are automatically vested with full constitutional rights and protections. A group called is one of several pioneers in this radical movement that is working to get “personhood” amendments on state ballots or pass such initiatives in state legislatures. A personhood amendment was on the ballot in Colorado in 2008 and it was decisively defeated by a margin of 3:1.  The Colorado Personhood amendment was back on the ballot again in 2010 and failed again by a margin of 3:1.   Various other similar initiatives are in the works in other states.

The “personhood” movement is a legal nightmare that holds the potential to criminalize any and all activities that result in harm or death to an unborn fetus. Think about the ramifications and consequences of such a measure. You could be driving down the road and accidentally rear end a vehicle whose driver is a pregnant female; if she aborts, you are guilty of illegally taking a human life and would, minimally, be charged with vehicular homicide. Heck, you could inadvertently bump into a pregnant woman’s grocery store cart, knock her down and if she miscarries, you are guilty of some form of murder or manslaughter. The civil and criminal aspects of a personhood law are mindboggling. Pregnant women who miscarry because of a variety of negligent activities could be imprisoned. There are thousands of scenarios that could land a person, male or female, pregnant or not pregnant, in prison for taking a human life while being subjected to civil lawsuits as a result of accidentally causing the death of an unborn fetus.

This is not only totally insane, it puts us in uncharted territory because no legal system in human history has ever ventured to grant an unborn fetus the same bundle of legal rights that fully born human beings enjoy.

Oddly, the groups clamoring for personhood laws and amendments are using the R v W opinion and wording of Justice Harry Blackmun who wrote in the majority opinion, to substantiate their case:

Quote: “The appellee and certain amici [pro-lifers] argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

The website of states:

Quote: “When the term “Person” is granted to a human being, it refers to the presence of a particular set of characteristics that grant that individual certain rights such as the right to life, liberty and the pursuit of happiness. In other words, to be a person is to be protected by a series of God given and constitutionally protected rights.

They know that if we clearly define the pre-born baby as a person then they will have the same right to life as all Americans do! This Amendment has the promise plugging the “Blackmun Hole,” a startling admission that if personhood could be established for the pre-born, the arguments in Roe would collapse.”

In a weird twist of irony, the personhood supporters are using Blackmun’s own rejection that an unborn fetus is in fact a human being who is fully vested with civil rights and every other protection under the law because they believe that they have a strong case to establish and prove beyond any reasonable doubt the “personhood” of the unborn. Astoundingly, they reference the science of fetology as proof:

Quote: “The science of fetology in 1973 was not able to prove, as it can now, that a fully human and unique individual exists at the moment of fertilization and continues to grow through various stages of development in a continuum (barring tragedy) until natural death from old age.” Source:

This “personhood issue” is not good news for the GOP that is largely dominated by the pro-life crowd and its most radical proponents. To pursue such an extreme solution to abortion will further alienate conservatives while giving ample ammunition to the pro-choice crowd to use against conservatives.  

Conservatives need to think long and hard about the personhood issue as well as the criminal and legal consequences attached thereto. Supporting life is one thing but to criminalize any and all acts that result in the death of a fetus by vesting the unborn with full civil and legal constitutional rights is extreme.

Of course there is also the issue of: is a fetus human and at what point does it become a human being?  The debates are all over the place and include “the fetus becomes a human being when it is vested with a soul”.  Of course, it’s impossible to determine when a fetus becomes vested with a soul.  The website,, provides an outstanding week to week explanation and photos of a fetus from the moment of conception through birth. 

While I may not personally subscribe to the view that life begins at the moment of conception, there are those who do.  That’s a debate that will never end. 

Disclosure: I personally support early abortion and would never vote to take that right away from another woman. The issue is between the woman and God. Not having walked in her shoes, I won't judge her.

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