'Personhood' silver bullet to kill Roe v. Wade?

By Bob Unruh
Pro-life organizations are trying to build support for the legal
definition that an unborn child is a person to exploit a weakness that
was cited by author Harry Blackmun when he wrote the creative Roe V.
Wade abortion precedent in 1973.
But their work has generated a huge argument within the pro-life
movement: whether it's better to chip away at the opportunities
abortionists have to conduct their business or a challenge should be
mounted to confront Roe's very premise that the unborn are only tissue.

WND reported earlier when several pro-life organizations launched an
advertising campaign that was critical of other pro-lifers for their
praise for the U.S. Supreme Court's partial birth abortion decision,
which said some procedures could be restricted.
Groups including Focus on the Family noted it was the first court
opinion in years that actually supported abortion restrictions and said
it was a moral victory, while others including the America Life League
countered that the court ruling actually would not prohibit a single
abortion, just a way of doing them.
That argument has been raised to a new level now, with opinions from
some of the top legal experts in the pro-life camp squaring off in a
sort of debate at the Personhood.net website.  
Dan Becker, spokesman for the Georgia Right to Life, which is working
on a state constitutional amendment that simply would declare that an
unborn child is a person from the moment of fertilization, said the
concept of personhood was pointed out by Blackmun in his original
declaration of the right to an abortion, and it shows the legal
precedent is living on borrowed time.
“We believe the Georgia Human Life Amendment provides a substantial
challenge to Roe v. Wade,” he said.
On the website comes a posting from Robert Muise, of the Thomas More
Law Center, who is arguing that the amendment recognizes the
“inviolable right of every innocent human being to life” as well as
defining “person” as applying to all human beings, irrespective of age,
“including … unborn offspring at every state of their biological
development, including fertilization.”
“It is important to bear in mind that the proposal establishes a
constitutional principle; it does not enact criminal or civil
legislation. And it establishes a constitutional principle that
provides a direct challenge to the fundamental holding of Roe v. Wade,”
he wrote. “Without a direct challenge to Roe, any proposal to protect
innocent human life from abortion is utterly meaningless.”
He said for 30 years pro-life activists have “shied away” from a direct
challenge to Roe, choosing an approach that advocates for victory one
step at a time.
“After these 30-plus years, we still have Roe and abortion-on-demand
through all nine months of pregnancy. The proposed constitutional
amendment seeks to change that. Consequently, this proposal is not for
the faint of heart. It is for those who are committed to changing the
status quo and who have the will to see it through,” he said.
“If the intent of the Georgia Legislature is to simply pass yet another
abortion law or constitutional amendment that does nothing to challenge
Roe, then we suggest that you consider other options and proposals. If
the Georgia legislature wants to ban abortion and has the fortitude to
take the fight to the Supreme Court, then it must act boldly and
directly challenge the fundamental flaw of the Roe decision,” he said.
Roe determined that “the unborn is not a person within the meaning of
the law,” he said, and that can be its downfall.
It was the Roe author, Blackmun, who concluded: “(If the) suggestion of
personhood [of the preborn] is established, the [abortion rights] case,
of course, collapses, for the fetus' right to life is then guaranteed
specifically by the [14th] Amendment.”
“Thus, the personhood of the preborn child is the single point on which
the entire debate turns,” Becker said.
In the Roe decision, the court said, “We need not resolve the difficult
question of when life begins. When those trained in … medicine,
philosophy, and theology are unable to arrive at any consensus, the
judiciary, at this point in the development of man's knowledge, is not
in a position to speculate as to the answer.”
Said Richard Thompson, president of the Thomas More Law Center, the
Georgia amendment is “the best legal means of overturning the central
holding of Roe v. Wade. … For too long the pro-life movement has been
dominated by a strategy of 'wait' – too fearful of losing to risk
winning.”
The Georgia plan, the “Paramount Right to Life” Amendment, H.R. 536, is
being offered by a bipartisan group of Georgia lawmakers.
“It is time that the citizens of Georgia be able to speak decisively to
this most fundamental right,” added Caryl Swift, president of Georgia
Right to Life.” The goal is for the plan to be presented to Georgia
voters in 2008.
However, legal experts for another highly visible pro-life
organization, the National Right to Life, are warning that to set up a
challenge to Roe v. Wade – and then lose – is not without cost.
“The [U.S. Supreme] Court (if it does review the case) is likely to
switch to a more absolutist equal protection rationale for the abortion
right, and all current regulations on abortion would be subject to, and
likely struck down under, this new rationale. This would have a
devastating effect on current protections for the unborn,” said an
analysis by James Bopp Jr. and Richard E. Coleson.
They affirm an approach that protects the abortion restrictions that
already exist, and continuing to create additional limits and
boundaries.
“If the U.S. Supreme Court, as presently constituted, were to actually
accept a case challenging the declared constitutional right to
abortion, there is the potential danger that the Court might actually
make things worse than they presently are,” the analysis continued.
“A vital battle stratagem is to choose proper terrain – favorable to
you, unfavorable to your foe. To change the hearts and minds of the
public on abortion, it is necessary for pro-lifers to frame the debate
to their advantage. Pro-life leaders have wisely focused on this
strategy. The debate over partial-birth abortion has furthered this
strategy because it has forced the pro-abortion camp to publicly defend
a particularly visible and gruesome practice,” the analysis said.
“Normally pro-abortion N.Y. Sen. Moynihan showed the difficulty of the
terrain for our opponents when he declared PBA to be infanticide and
beyond the pale of civilization,” the group said.
“By contrast, the pro-life movement must at present avoid fighting on
the more difficult terrain of its own position, namely arguing that
abortion should not be available in cases of rape, incest, fetal
deformity, and harm to the mother. While restricting abortion in these
situations is morally defensible, public opinion polls show that
popular support for the pro-life side drops off dramatically when these
'hard' cases are the topic … This is an important debate to have, and
we should be ready to convince the public of the need for few, if any,
exceptions to laws prohibiting abortion when such laws can be upheld,”
the group said.
“Eschewing incremental efforts to limit abortion where legally and
politically possible makes the error of not saving some because not all
can be saved. … The pro-life movement requires passion, to be sure, but
it must be tempered by wisdom, judgment, and charity. The babies
deserve no less,” the group said.
Muise said the Bopp memo can be summed up with, “They fear losing at
the risk of winning.”
“We must never forget that ending all abortions is the ultimate goal,”
he responded. “Protecting innocent human life is not negotiable. … It
would be a tragic mistake to be content with a strategy that makes
ending abortion secondary to other regulatory efforts, or worse yet, a
strategy that avoids it altogether,” he said.
“We are in this fight to win, not to go on in perpetuity, content with
an occasional 'honorable mention,'” he said.
“A case must be presented to the United States Supreme Court that
challenges the central premise of Roe – that the unborn is not a person
within the meaning of the law,” he added.
“While terrain is important, victory is not secured by simply holding
terrain – it is secured by defeating the enemy,” Muise wrote. “The
status quo is unacceptable.”
Becker told WND that the Rutherford Institute also has come out in
favor of human life amendments in all 50 states.
“Now is the time. You have attorneys … enthused for a facial challenge
to Roe. We believe that there is no better time than the present …but
it's going to take a case that will challenge Roe on its face,” Becker
said.
As WND reported earlier, Becker said his state organization took on the
approach of challenging abortions headon several years ago, and has
made unprecedented progress since then.
“We have to take the position that aligning ourselves with God's Word
produces the most positive results,” he said.
He said pro-life advocates in the state of Michigan got the idea
started, and Georgia has taken it on as its own. Now other states,
including Colorado, are pursuing the strategy that abortion is abortion
and the Bible doesn't allow it.
Mark Crutcher, chief of Life Dynamics agreed that abortion must be
stopped and arguing over how to do that accomplishes little.
After the Supreme Court allowed the limits on partial birth abortions,
he said, “So my advice is (a) pause for a moment to celebrate the
victory, (b) don't read more into it than is actually there, and (c)
get back to work. Babies are still dying.”
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