A Defense of State Personhood Amendments

A Defense of State Personhood Amendments and of Civility in the Pro-Life Movement

By Gualberto Garcia Jones, Esq. (2010)

“Fools, purists, breathtaking stunning ignorance, infecting, intellectually incoherent, oblivious, lacking thought, elementary, tilting at windmills, a blank …”

These are all words written by Mr. Paul Benjamin Linton on the pages of the Human Life Review to describe fellow pro-lifers who believe in the principle and strategy of personhood.

Does Mr. Linton recognize the damage that he is doing to the pro-life movement with his ad hominem attacks? There may be no “silver bullet” against abortion, but if there were a silver bullet for the pro-abortion side, it would be the internal strife caused by Mr. Linton’s fratricidal attacks.

Mr. Linton recognizes that “there is a tremendous amount of frustration in the pro-life movement.” However, he fails to see that much of that frustration comes from attitudes and behavior like the one he displayed in his article. Condescension is much too prevalent in the pro-life movement, and Mr. Linton would be well advised to stop it.

It is interesting to note that Mr. Linton’s original published article was titled, “A Fool’s Errand: State ‘Personhood’ Proposals.” Evidently sensing the abrasive tone of Mr. Linton’s title, the Human Life Review’s web-archived article omits the words “Fool’s Errand” from its title. As proponents of state personhood amendments, and as fellow pro-lifers, we appreciate the toning down of the vitriol presented in Mr. Linton’s title.

Unfortunately, the entire article is peppered with derisive and condescending language toward those who disagree with Mr. Linton. He uses ad hominem attacks such as calling fellow pro-lifers “fools and purists” and refers to them as people showing “breathtaking stunning ignorance.” He describes our effect on the pro-life movement as “infecting,” our strategy as “intellectually incoherent, oblivious, lacking thought, elementary, tilting at windmills, a blank …”

As long as pro-lifers are publicly divided, abortion will not end, for as we all know, “a house divided cannot stand.”

Yet, behind the supercilious ad hominem attacks from Mr. Linton, lie several legitimate legal objections which deserve a more careful examination.

Hierarchy of the Law: Can a state law contradict Supreme Court precedent?

Personhood proponents do not disagree with Mr. Linton’s lengthy lesson in civics. We agree that the Supreme Court interprets the meaning of the Constitution. We agree that the states must abide by that interpretation. We also agree that only a Constitutional amendment or a reversal of Roe v. Wade can change that interpretation.

Most importantly, we partially agree with Mr. Linton that “no justice on the Court has ever questioned” the holding “that the unborn child is not a ‘person’”..

From all of these undisputed factors, Mr. Linton reaches the conclusion that state personhood amendments are foolish. After all, if no judge has questioned Blackmun’s dicta regarding preborn personhood, what is the point of passing state personhood measures?

Under the principle of judicial review established in the landmark case of Marbury v. Madison, the Supreme Court decides when a state or federal law contradicts the United States Constitution. 

The point of passing state personhood measures is to argue what every pro-lifer believes, namely that the preborn are persons. We will not revisit the lengthy arguments put forward by Gregory Roden and Charles Lugosi regarding the topic of the meaning of the Fourteenth Amendment and personhood. Suffice it to say that, legally, the question is not settled and calls for immediate test cases.

As Mr. Linton himself explains, “Federal courts may not render advisory opinions.” In other words, the Supreme Court won’t answer a question unless it is asked within the context of a case or controversy. So why has no judge ever questioned Blackmun’s personhood dicta in Roe? Simply put, they have not been asked to question it by a case or controversy that specifically addresses the point. Not a single case has been argued addressing personhood in a consistent fashion since Roe v. Wade was litigated.

We would highly recommend the reader listen to the Supreme Court oral re-argument of Roe v. Wade. If anyone has any doubts as to the centrality of the issue of personhood, they won’t after listening to the arguments.

It is especially interesting to note that the state personhood measure strategy, which Mr. Linton disparages as showing “breathtaking,” and “stunning ignorance” was proposed by Chief Justice Burger during the oral re-argument of Roe v. Wade.

In 1972, Sarah Weddington, the young legal champion of abortion, tried to teach the same lesson in constitutional hierarchy and “Civics 101” to Chief Justice Burger as Mr. Linton. Chief Justice Burger, who can be called many things but not a stunningly ignorant man, pressed Mrs. Weddington to finally admit that the “state could obviously adopt that kind of statute (establishing preborn personhood at the state level) and then the question would have to be adjudicated as to whether, for all purposes, that statute is constitutional.”

What clearer proof of the legitimacy of the state personhood strategy can there be than the Chief Justice of the Supreme Court  who decided Roe v. Wade suggesting it as an option?

The hierarchy of the law is perfectly clear and perfectly consistent with a state personhood amendment strategy to outlawing abortion. We can only disagree as to the timing. We say now; Mr. Linton says later.

State Action v. Private Action

Personhood proponents are aware of the general rule that constitutional guarantees generally only apply to state action. In the case of abortion, not only can abortion be considered state action, but even if considered private action, there is a perfectly coherent exception to the rule that could be argued.

Mr. Linton, in his overly aggressive manner, immediately attributes this apparent difference of opinion to the personhood proponents’ neophyte ignorance of the law.

On the contrary, Mr. Linton is not aware that he is repeating arguments that more veteran attorneys in the pro-life movement are well aware of and have been arguing for over 40  years.

On July 7, 1968, the Denver Post published an article entitled, “Re-examine state abortion law, opponent urges.” In this article, Professor Homer Clark, an abortion advocate who taught at the University of Colorado School of Law at the time, stated the same arguments that Mr. Linton makes. Professor Clark stated:

The suggestion has been made that House Bill 1426 may be open to constitutional objections because it allows the fetus to be deprived of life without due process. There are several definitive answers to this suggestion. One is that no case has been cited which so holds, and none has been found after reasonable thorough search. Another is that the only person directly involved in the decision to terminate the pregnancy is the mother, and it is her rights which are involved. Still another factor is the requirement of the Due Process Clause that state’s action be shown before the clause may be invoked. It is extremely difficult to see how the state is bringing about the abortion when it merely permits the woman freely to decide, under certain limited circumstances, whether the pregnancy will be terminated.

Forty-two years ago, we responded to these specious claims.

In stating that no case could be cited that held the child in the womb to be a person, the learned professor overlooked Williams v. Marion Rapid Transit Co., a 1949 Ohio state supreme court decision where the court wrote that, “If the common law protects the rights of the unborn child and if every intendment in the law is favorable to him, the inference is inevitable that such unborn child is a person and possesses the rights that inhere in a person even though he is incapable himself to assert them.”

Professor Clark was also wrong in assuming that there was a lack of state action when it came to a woman’s decision to participate in an abortion. Interestingly, the following arguments – arguments that we made over 40  years ago against an abortion advocate – are valid today against Mr. Linton:

The extensive legal safeguards of our laws for the protection of the accused are well known (legal counsel, fair trial, open court, appeal, re-trial if need be). None of these safeguards is provided in the Colorado abortion law (much less in Roe v. Wade) for the protection of the innocent unborn child. It does not take a lawyer to recognize the glaring incongruity.

Professor Clark states, however, that due process of law applies only when state action is involved, and he finds difficulty in seeing how the state is bringing about an abortion when it “merely permits the woman freely to decide, under certain limited circumstances, whether the pregnancy will be terminated.”

Professor Clark’s argument does not stand up under scrutiny. The U.S. Supreme Court in 1967 in the case of Reitman v. Mulkey held that a California constitutional amendment (adopted by 2 to 1 majority by a vote of the people) which permitted home owners to sell or not to sell to whomever they please, and for whatever reason, constituted discriminatory state action. The California constitutional amendment was invalidated as being an unconstitutional denial of the equal protection of the laws as guaranteed by the 14th Amendment to the federal Constitution since its evident result was racially discriminatory housing. It must be remembered that the California amendment did not, by its terms, permit racial discrimination in housing. The U.S. Supreme Court said that would be its effect, however. If a state law which permits racial discrimination in housing on the part of each private homeowner is state action, a state law which permits abortion of the unborn fetus, albeit by quasi-private decision, is also state action.

Not only is state-sanctioned, and state-funded abortion clearly state action, it is also a violation of the equal protection of the law found in the federal and the state constitutions of many states.

Mr. Linton also calls for a test case in order to have a “case” or “controversy.”

“Where is the test case?” he asks. The answer, again, is quite clear. The test case would be here a lot sooner if Mr. Linton and his contributor, Mr. Dodson, would not subvert the personhood movement and every single personhood amendment that appears to have a chance to pass.

Allow the proponents of a personhood amendment to pass one state amendment and a legal challenge would be in the works. The specific test case could be any of an almost infinite variation. They would all, however, have one thing in common— the test case arising from a state personhood amendment would be an unapologetic, uncompromising and uncompromised assertion of what the Declaration of Independence found to be a self evident truth, namely, that there are certain unalienable rights that the state doesn’t grant and the state can’t take away, and paramount among them is the right to life.

Perhaps the weakest assertion put forth by Mr. Linton in his article is that “state personhood amendments … could overturn the entire body of law developed over the years regulating the practice of abortion. That is because, by definition, you cannot regulate what you prohibit.” Isn’t the goal of the pro-life movement to prohibit the practice of abortion? And if the state personhood amendment is as ineffectual as Mr. Linton predicts, and is simply thrown out at first glance, how would this affect our current laws, for how could laws deemed to be unconstitutional trump existing laws? And if they are found to be constitutional and therefore the amendment is enforced, why would a complete ban be a worse thing than the regulation of the lawful killing of children in the womb?

This leads us to the final issue that Mr. Linton presents: enforcement.

Prohibitions v. Mandates

We agree with Mr. Linton that, while constitutional prohibitions are self executing and judicially enforceable, constitutional language directing the legislature to enact laws with respect to a given issue may sometimes be more aspirational than anything else. However in the case of state personhood amendments, Mr. Linton’s arguments fall short.

As proof of this particular theory, Mr. Linton refers us to the Montana Personhood Amendment. CI-102, as it is known in Montana, does contain directions to the Montana legislature to enact appropriate legislation. Mr. Linton notes several cases in which constitutional amendments that sought to force legislatures to enact specific laws were held to be unenforceable. In State of Arizona v. Boykin, a constitutional provision requiring the legislatures to enact a law mandating an eight hour day was held to be unenforceable because the court held that the language of the constitution provided “no right to an eight hour day” and not because a constitutional amendment can’t mandate action on the part of the legislature. In other words, the legal problem is not whether a state constitution can require implementation of rights, it can, but whether those rights exist in the first place. In the Boykin case, the court held that right didn’t exist. In the case of a personhood measure, that right would have been created explicitly.

The Montana Personhood Amendment relies on article II, section 17 of the constitution of the state of Montana, and the familiar due process right that “no person shall be deprived of life without due process of law.” The right to life, unlike the right to an  eight hour work day, is firmly rooted both in the letter of the Montana constitution and in the precedent existing prior to Roe v. Wade. With passage of CI-102, Montana would have clearly defined an existing, unalienable right, and therefore the implementation of the right would be judicially enforceable.

Unfortunately, Mr. Linton and his fellow regulation-only colleagues were able to thwart the Montana Personhood Amendment before it became law.

As definitive proof that “mandate” language within state constitutions calling for implementation by appropriate legislation is fully enforceable, one need only to perform a Google search of those very words. The results might surprise Mr. Linton because  they show that the constitutions of many states include this exact language as an enforcement mechanism for their fundamental rights.

Specific Examples

Mr. Linton suggests that, “Mississippi and Montana – [are] illustrative of the lack of thought that has gone into their drafting.” As we have already discussed, Montana’s personhood amendment would not be thwarted by lack of enforceability. Also, a close examination of the Mississippi initiatives proves that much thought and great legal minds have labored to craft legitimate language.

Mississippi

Mr. Linton argues that Mississippi’s Personhood Amendment is a lost cause because it violates § 273(5)(a) of the Mississippi constitution that provides that, “The initiative process shall not be used: (a) For the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution.”  Taking Mr. Linton’s advice, Planned Parenthood and the ACLU filed a lawsuit in Mississippi asserting the very claim that Mr. Linton asserts.

Mississippi’s personhood amendment drafter, Stephen Crampton, responded to Mr. Linton’s, Planned Parenthood’s and the ACLU’s argument, with a perfectly logical argument; appropriately defining the word “person” under a bill of rights that already has the basic right that “no person shall be deprived of life, liberty, or property except by due process of law” is not a “proposal, modification, or repeal of the bill of rights.” It is instead, what all definitions are, a clarification of the meaning of a word that is already in use, and which for most of the state’s history held the very meaning of the attempted definition.

Indeed, the case against the Mississippi Personhood Amendment turned on the court’s interpretation of the words “proposal” and “modification,” neither of which is defined in the constitution. Under Mr. Linton’s interpretation of the Mississippi laws, every time the courts render a definition they  would be “modifying” the law, and thus amending the constitution or statute at issue. Such an interpretation of the law, allowing the courts unbridled power to enact constitutional amendments falls clearly outside of the scope of judicial authority and is implausible at best.

Mr. Linton’s prediction that if the Mississippi Personhood Amendment were challenged, it “would be struck off the ballot,” proved false when on Tuesday, October 26, Judge Malcom Harrison dismissed the lawsuit from Planned Parenthood and the ACLU by ruling that “there is a heavy burden in trying to restrict the citizenry’s right to amend the Constitution. Initiative Measure No. 26 has received more than the required amount of signatures to be placed on the ballot and the Constitution recognizes the right of the citizens to amend their Constitution.” As of the writing of this article, Planned Parenthood and the ACLU failed to meet the deadline for an appeal. Amendment 26 will be on Mississippi’s 2011 ballot.

Undoubtedly, Mr. Linton is an experienced attorney. However, the fact that he was wrong on his reading of Mississippi’s language attests to the fact that the detractors of state personhood amendments are attempting to snuff out a pro-life strategy which is absolutely in line with a consistent ethic of life and legally viable.

Mr. Linton mistook Mississippi’s simple, yet elegant, legal drafting for lack of thought. Perhaps the detractors of the personhood strategy could take a lesson  from Judge Malcolm Harrison’s ruling on Mississippi’s personhood amendment. Perhaps pro-lifers who attempt to undermine the personhood strategy should have to “meet a heavy burden in attempting to restrict the (pro-life) citizenry’s right to amend the Constitution” or choose a strategy of their own.

In Conclusion

Many of Mr. Linton’s assumptions about the different state personhood amendments evidence a fundamental misunderstanding of the personhood movement. State personhood amendments are a decentralized phenomenon. Personhood USA has served as a facilitator to these amendments, providing advice and support as needed and requested, but the control of the individual amendments is firmly in the hands of the grassroots pro-lifers at the state and local level. Personhood USA is to the emerging personhood movement what Glen Beck is to the Tea Party and the 912 groups—a  guide and a supporter that respects the idiosyncrasies of individual state’s leadership and activists.

The result of this decentralization has been the creation of unique personhood amendments in each state. This individual ownership and local control has energized a base that for almost four decades relied on the “expertise” of a few enlightened lawyers.  The pro-life movement has seen an infusion of young families, missionaries, professionals, churches, homeschool groups and folks who had always been pro-life, but had never seen a reason to get personally involved. In other words, state personhood amendments have put some movement back into the pro-life movement.

Legal minds may disagree, and more often than not, they do disagree. But the public nature of Mr. Linton’s disagreements, and the fact that Mr. Linton and other abortion regulators launch such ad hominem and corrosive public attacks against fellow pro-lifers, is simply unacceptable and demands a strong rebuke from the pro-life community.

Is each state certain that its  personhood amendment will be “the one”? No. Nobody in the pro-life movement knows the exact language that will ultimately win the battle. However, the personhood movement counts amongst its rank and file highly respected lawyers who  disagree with Mr. Linton’s legal opinions.

What we do know is that “right temporarily defeated, is stronger than evil.” Every person who works for personhood knows they are fighting for the truth. Every person who is educated by the state personhood amendments hears the unequivocal message that abortion is never right.