What’s the Point of a State Human Life Amendment?

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by Clarke D. Forsythe

Senior Councel, Americans United for Life

and Denise M. Burke

Vice President & Legal Director, Americans United for Life

 

What is prudent and what is good are substantially one and the same; they differ only in their place in the logical succession of realization. For whatever is good must first have been prudent.
-- Josef Pieper, Catholic philosopher (1904-1997)

 

Pro-life activists in a few states are now exploring the merits of amending their state constitution by ballot initiative with a state "human life amendment." In considering the prudence of a state human life amendment (HLA), organizational leaders and activists should ask a number of questions about the meaning, potential impact, implications, and costs of state amendments and the ballot initiative process, including:

The overarching question is prudential -- connecting means to ends: What is the goal of a state human life amendment and, given the resources involved, is it an effective means to achieve that goal? Answering this overarching question requires prudent analysis and a realistic view of the current legal, political, and social environments in the state.

 

In the abstract, a state HLA is very appealing. Protecting human life is a fundamental principle and protecting it in the federal or a state constitution seems like an essential goal. If a constitution protects essential rights, the right to life should be part of that. But human lives are protected not by abstractions but by effective laws.

 

 

What would a Human Life Amendment do?

It is necessary to look at the text and not simply the name of a proposed amendment. For example, a state "human life amendment" might say: "The right to due process and the right to equal protection of the law under the state constitution vest at conception. A ‘person' (for purposes of the Constitution and laws of this State) exists from the moment of conception." In this instance, the amendment basically says that due process and equal protection of the laws for humans begins at "the moment of conception."

 

 

What would be the actual impact of such an amendment?

Constitutions are designed to control "state action," the action of the different branches of state government -- legislature, judiciary, or executive. Constitutions do not normally act to control the personal or private action of individuals. That traditionally has been the role of the criminal law (a homicide code or abortion law). A state constitutional amendment that treated the unborn as a person under the due process or equal protection would touch only state action, not individual action (e.g. one person killing another). Essentially, this language would prevent the state from denying due process or equal protection of the laws to an unborn child from conception onward.

 

Further, constitutions and homicide codes have different purposes. Currently, the strongest law to protect unborn children in many states is a fetal homicide law, which treats the unborn child as a human being, like other human beings. Its scope however is blunted by Roe v. Wade -- it can't be applied to the situation of abortion.

 

 

What problem is such an amendment intended to correct?

The typical purpose of a state amendment would be to redress a contrary state governmental action that violates human rights, such as a state high court decision creating a state right to abortion. The point of an amendment would, thus, depend on whether such a problem existed in the particular state.

 

Another problem that such an amendment might fix is a legislature legalizing abortion. Although the United States Supreme Court (USSC) (not the state legislature) has legalized abortion through Roe v. Wade, a human life amendment might be intended to prevent the legislature from approving abortion after Roe is overturned or from taking steps now to protect the abortion license in anticipation of Roe being reversed at some point in the future.

 

Rather than fix a particular state governmental problem, however, some have proposed that a state human life amendment would be a good vehicle to challenge the USSC's decision in Roe v. Wade.

 

 

Would a state HLA be an effective vehicle for challenging Roe?

The USSC's Gonzales v. Carhart decision of April 2007 is the most significant Supreme Court abortion decision in 15 years, since the Planned Parenthood v. Casey decision of 1992. Beyond the fact that the Court upheld the federal partial birth abortion prohibition and will likely uphold state partial-birth abortion prohibitions, Gonzales shows a five-justice majority that will uphold virtually any regulation on abortion that makes medical sense.

 

But Gonzales gives no green light to abortion prohibitions or a constitutional amendment that seeks to act as a complete prohibition on abortion. There are still five justices (Justices Ginsburg, Stevens, Souter, Breyer, and Kennedy) who strongly support Roe and abortion before viability.

 

Even if a specific state HLA sparked a test case, this Court would most likely never hear the case. The USSC has virtually complete discretion over its cases; it could easily refuse to review any case involving a state HLA. Proponents of state HLAs frequently argue that an HLA is an effective vehicle to present medical evidence that human life begins at conception (evidence that was not available in 1973 when Roe was decided) and that it is this evidence that will cause the USSC to hear the case and, ultimately, lead to Roe be overturned. However, the Court has refused at least nine times over the past 15 years to hear a case that directly challenged Roe using this same evidence; most recently on October 1, 2007, when the Court refused to hear a case on appeal from the New Jersey Supreme Court, Acuna v. Turkish.

 

Moreover, in Planned Parenthood v. Casey, the USSC essentially reframed the abortion right, characterizing it as a "reliance interest." The Court gave great deference to the fact that women had purportedly come to rely on the availability of legal abortion as a means to secure their places in the social and economic fabric of society. Thus, the Court, in reaffirming the right to an abortion, did not focus on when human life begins or when the unborn child's right to life becomes paramount. The focus was on the woman, her health, her right to control her reproduction, and her expectations.

 

For these reasons, many in the pro-life movement contend that it is the negative impact of abortion on women (not an HLA) that will ultimately result in both a change in public opinion and a successful challenge to Roe.

 

 

Is an HLA the only means for directly challenging Roe as some of its proponents claim?

It is not. The history of USSC and federal precedents has shown that state restrictions or regulations on abortion are valid means of challenging Roe.

 

 

Is a state HLA a good idea either before or after Roe falls?

Even when Roe falls, an HLA would have further serious legal, policy, and political implications that must be addressed.

 

First, a constitutional amendment is not self-enforcing -- an HLA would still need a statutory prohibition for prosecutors to reach personal conduct, like a doctor performing an illegal abortion.

 

Second, an HLA could provide a standard against which any abortion-related legislation would be tested and could establish such a high standard that it would prevent the passage of any thing less than an abortion law that provides equal protection for the unborn child beginning at conception.

 

For example, would an HLA allow a "life of the mother" exception in abortion legislation? Would an HLA allow women to be exempted from prosecution for abortion, as was the uniform policy of the states before Roe?

 

These questions readily suggest the following: Imagine a situation in which pro-abortion legislators could prevent any prohibition law by simply preventing a perfect bill from passing. An HLA requires a perfect prohibition, but the pro-abortion legislators can prevent a perfect bill. Something less than a perfect prohibition (perhaps a partial prohibition, or a prohibition with a life of the mother exception) could be politically passed but it couldn't survive court review because of the high standard of the HLA. Pro-abortion legislators then do not have to prevent a prohibition bill from passing; they just have to prevent a perfect prohibition from passing. The HLA ends up empowering pro-abortion legislators by creating such a high standard that they can easily prevent the perfect bill.

 

Furthermore, at its enactment, an HLA (depending on how it is drafted) could be interpreted as repealing existing abortion laws in the state such as informed consent and parental involvement for minors seeking abortions. This could be the case regardless of whether the HLA ultimately survives judicial review. Is that a desirable scenario? Could those laws be re-enacted if necessary? In the current environment, this would seem to be a precarious gamble.

 

Many proponents of HLAs have argued that incremental laws such as informed consent, parental involvement, funding limitations on abortion, and other protective laws are not working and, thus, we must try an HLA. This argument ignores research proving that such incremental laws reduce abortions and help to educate others on the negative impact of abortion on women. In recent research published by the Heritage Foundation, Professor Michael New, formerly of the Harvard-MIT Data Center, provided compelling evidence that incremental abortion laws were responsible for the 17-19 percent decrease in abortions during the 1990s.

 

Finally, beyond the many legal issues raised are numerous political questions. What the proposed amendment means would be a significant debate during the campaign. And it would be a free-for-all, allowing proponents and opponents of the HLA to claim practically anything in the media and elsewhere during the campaign since the exact meaning and effect of the language would be undetermined.

 

Conversely, laws that are addressed by the legislature have some history of its intended meaning and purpose, called "legislative history," created by the debate in the legislature about the law. A law approved through the ballot initiative process has none of this, only the text. To whom would the proponents or the public go to ask for its authoritative meaning? In the final analysis, the people would go to judges -- to the state supreme court, but not until after it is enacted. An HLA ultimately asks state judges to interpret and apply it, without the benefit of any legislative history.

 

 

Would a state HLA increase legal protection for human life?

If actually enacted, in the short-term, it would do nothing -- or nothing with respect to abortion. The federal courts would most likely block its application to abortion. And the current USSC would most likely never review the case. But, even if it went into effect, it would only limit state, not private (personal), action.

 

The abstractness of an amendment of this kind raises a big question: Is a comprehensive solution really feasible in any way, or are piecemeal laws that specifically apply to different situations and technologies the best that we can hope for?

 

If the objective of an HLA is simply to test public opinion or make a statement in the state, that's not a sufficient justification to use the resources involved or to threaten a loss that would have future negative ramifications for legislation and politics in the state. In the wake of the loss of an HLA at the ballot, even pro-life legislators might deduce a lack of public support and would not be encouraged to push a pro-life agenda in the legislature.

 

 

How likely is an HLA to pass at the ballot?

That would likely depend state by state, but, more than likely, an HLA could only be achieved based on a record of stronger and stronger pro-life legislative accomplishments reflecting public opinion. And, even then, it would need the unified support of all of the state pro-life and pro-family policy groups to give it a chance of success.

 

One of the serious political questions about attempting an HLA is whether comprehensive protection is possible from a climate of abortion-on-demand. Politics is about drawing comparisons -- in this case, between abortion- on-demand and an uncertain impact under an HLA. It is unlikely that an HLA can be achieved without first overturning the national right to abortion and opening up the democratic and political processes in the states. Given the climate of abortion-on-demand imposed by the USSC over the past 34 years, proponents of HLAs need to ask whether it is politically possible to get a majority of voters to switch from a culture of abortion-on-demand to a position of no abortions in one vote. It will likely be necessary to get Roe out of the way first before such a public vote would be possible. The current climate of abortion-on-demand is hardly the right climate to successfully push an HLA.

 

 

What is the impact of an HLA on issues other than abortion?

Another practical political question involved in a public debate over an HLA is the impact of an HLA on issues other than abortion. For example, would an HLA that defines "life" to begin at conception implicate other issues, like the status of frozen embryos and the debate over abortifacient birth control? Inevitably, it would, or at least that would be the claim in the public debate. Certainly, an HLA could be construed as affecting contraception, in vitro fertilization (IVF), and any research involving the embryo. In effect, pro-life forces would have to be prepared to fight not just a campaign on abortion, but multiple campaigns on IVF, cloning, and stem cell research. Proponents of an HLA would immediately be thrust into a debate over birth control and a host of other issues. An HLA will be seen -- and portrayed in the media -- as an abortion prohibition, a birth control prohibition, an IVF prohibition, a cloning prohibition, and a prohibition on stem cell research.

 

This, again, raises the question of whether a comprehensive constitutional or legislative solution will ever be feasible -- a kind of all-in-one solution, addressing all bioethical issues involving developing human life.

 

 

Conclusion

In the short-term, the timing of an HLA is problematic. It cannot overturn Roe or restore legal protection for the unborn given the current Supreme Court. Finally and most critically, if an HLA is going to do so little now, because of current political and judicial obstacles, is it worth the effort now? In light of political, legal, and social considerations and obstacles, is it the most prudent path we can follow to protect women and the unborn and to create a culture of life in America?