The Personhood Movement: Right and Wrong

The Catholic Thing ^ | February 5, 2010 | Austin Ruse

[cmj328]

If a state amendment recognizing the personhood of the unborn child came before the U.S. Supreme Court today, it wouldn’t have a snowball’s chance of being constitutionally approved by this court. Yet this is the legal theory touted by the personhood movement that is sweeping certain parts of the pro-life movements. It is the silver bullet theory for killing Roe v. Wade.

Here is the amendment as it is now being promoted in California:

The term “person” applies to all living human organisms from the beginning of their biological development, regardless of the means by which they were procreated, method of reproduction, age, race, sex, gender, physical well-being, function, or condition of physical or mental dependency and/or disability.

According to the California Civil Rights Foundation, which is leading the personhood effort in that state, “If (the amendment) passes, the California Human Rights Amendment will amend the California Constitution and define human rights commencing at biological development (e.g. conception). A pre-born child in the womb, of any age, will have the same rights and full protection under law as adults.”

Something like this was tried in Colorado a few years ago and was trounced in that largely prolife state 73 percent to 27 percent. Similar efforts are underway in seven states with more to come. And personhood signs and banners were all over the recent March for Life.

There is something very appealing about the rhetoric of the personhood movement. As Senator Sam Brownback says, “We are either persons or property.” If the unborn child is a person, then she has certain rights, chief among them the right not to be killed. Using this language, Katy Walker of American Life League had the frequently frothing Dylan Ratigan of MSNBC somewhat tamed and even charmed.

Personhood advocates, good-hearted people, say this is a way to galvanize the pro-life movements. And they’re right. There is something exciting about entering into a fight that one could win, at least in a limited sense. Advocates say, correctly, that the personhood movement educates the public in new and gripping language and at the same time gives pro-lifers something palpable to do. But there is a train wreck coming. Standing on the tracks way out there is Roe v. Wade.

If perchance one of these amendments would pass into law in some state, it would be challenged in court and at some point the issue would be brought before the Supreme Court. On the current court, there are likely two votes to overturn Roe right now, another two who might go that way given the right set of circumstances, and another very solid bloc of five Justices who have shown no interest in overturning Roe.

Last year at a pro-life meeting there was a private debate on the personhood amendment between a lawyer from Georgia who was promoting the idea in his state and National Right to Life’s general counsel James Bopp, who opposes the idea. At the end of all the legal give and take, the argument from the personhood side boiled down to divine intervention. They are counting on God to change the heart of a single justice, Anthony Kennedy, who has given no indication that he thinks Roe ought to go.

There is a great appeal to working on something that will be “The Thing That Kills Roe.” There is a natural yearning to get this thing done and get it done now. The personhood movement also answers the frustration that naturally comes with such a long fight. Jeanne Head of National Right to Life has said that, after Roe, she assumed the fight to overturn would last no more than a few years. Ann Scheidler of the Pro-Life Action League says much the same thing.

The Chinese philosopher Sun-Tzu said the most dangerous action for an army is to overreach. To overreach is to be exposed to even greater danger than usual, and not just to lose, but also to suffer perhaps fatal consequences. Or at least to end up further back than where one started.

If a personhood amendment comes before this court, a new and terrifying decision may put the pro-life movement back a quarter century or more. At the very least it could uphold Roe for a third time. At the worst, the court could strike down years of sensible, incremental advances that have had the effect of changing the hearts and minds of millions of Americans.

As pro-life legal scholar Hadley Arkes has said, “The partial-birth abortion case has shown that the court is open for business and is likely to sustain even more restrictions.” Echoing Arkes, William Saunders of Americans United for Life compared Roe to a Christmas ham, “Each slice makes it smaller and smaller until it is no more.” This is hard to hear for those who are eager for this nightmare to end.

In World War II, the U.S. Army did not start in Berlin; it ended up there. First it had to go through D-Day, the French hedgerows, the Battle of the Bulge, and much else. We are getting there ourselves in the pro-life ranks, but we aren’t there yet. Personhood gets us no closer and, regrettably, may put us further back.

Austin Ruse is the President of the New York and Washinton, D.C.-based Catholic Family & Human Rights Institute (C-FAM), a research institute that focuses exclusively on international social policy.

[cmj328]

"At the end of all the legal give and take, the argument from the personhood side boiled down to divine intervention. They are counting on God to change the heart of a single justice"

Is this true?

[Talisker]

If such a thing passes anywhere, it will have to be specified as being either a creation of the government, or an acknowledgement by the government.

I do not believe the latter will be allowed by the Powers That Be, because it would give a clear label to, and distinction from, the corporate person, which in turn could be used in court to challenge presumption of personam jurisdiction.

And presumption’s all they got.

[mvpel]

A pre-born child in the womb, of any age, will have the same rights and full protection under law as adults.

I don't think that they've thought this all the way through, and I don't think that even if they win on it, it will be the silver bullet they expect it to be.

It's already lawful under certain circumstances, and essentially always has been, to end the life of someone whose "personhood" is not the slightest bit in question. It's called "justifiable homicide," and the pro-abortion judges and legislators will simply apply the "castle doctrine" laws to the interior of a woman's womb. "After all," they'll say, "if it's lawful to kill an unwanted intruder inside your home, with no duty to retreat, then how can it be unlawful to kill an unwanted intruder inside your body?" Whether or not the intruder is legally a "person" has no bearing on it. You don't need to define an intruder as a non-person in order for it to be legal to kill him.

[KrisKrinkle]

As Senator Sam Brownback says, “We are either persons or property.”

Why are those the only alternatives. If those are the only alternatives, what about air? Is air property belonging to a person or is air a person?

[KrisKrinkle]

The term “person” applies to all living human organisms...

The terms "person" and "organism" need to be defined.

If you use Webster's 1828 dictionary which says in part a person is "An individual human being consisting of body and soul", you may be required to prove the soul part. (I don't think the rest of Webster's definition does a lot of good here.)

There will be trouble with organism too. The closest possibly useful definition I found was "a living thing that has (or can develop) the ability to act or function independently."

Most of the definitions of "organism" I found use the word "independent". The argument would be that since that which is newly conceived is no more independent than an arm or a liver, it does not meet the definition of organism and therefore does not comply with the definition these folks are pushing.

In regard to the folks behind this amendment, their hearts are in the right place but the proposal needs more thought, else it will be used contrary to what they intend.

[cmj328]

ping - important article on strategy.

[Just A Nobody]

"After all," they'll say, "if it's lawful to kill an unwanted intruder inside your home, with no duty to retreat, then how can it be unlawful to kill an unwanted intruder inside your body?"

That is clearly one of the most absurd analogies I've ever seen! You do not invite, welcome and encourage an "unwanted intruder" inside your home.

The exact opposite is true when referring to an "unwanted intruder" inside your body. There are a number of ways to avoid an unwanted child.

And yes, I'm aware that the best security system installed in your home does not always keep out unwanted intruders, nor do all birth control methods work all the time -- save one.

However, there is a world of difference between ending the life of someone who breaks into your home and murdering someone who exists by your very actions.

This is an eight week unborn child, created by deliberate actions of those responsible for her/his creation.

[bigoil]

Austin Ruse is a COWARD who is afraid to fight for the rights of the most vulnerable in our society—the unborn.

Roe v. Wade never addressed the issue of personhood.

[Just A Nobody]

Personhood gets us no closer and, regrettably, may put us further back.
Austin Ruse is the President of the New York and Washinton, D.C.-based Catholic Family & Human Rights Institute

When are catholics going to start calling these people out? That statement is an outright lie, according to the SCOTUS decision in Roe v. Wade.

The Supreme Court said:
“We need not resolve the difficult question of when life begins . . . the judiciary at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

The technology -- the development of man's knowledge -- to produce this picture was not available in 1973, on a wide scale basis.

In their Roe v. Wade ruling Justice Blackmun wrote;
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.

If personhood was established, then the Preamble, 5th, and the 14th amendments would apply to protecting the lives of the unborn.

Never once did the Supreme Court declare abortion itself to be a Constitutional right.

[TBP]

I’d wiat until we hve at least one mor ejustice. I think you culd count on Thomas, Scalia, Alito, and probably Roberts to uphold such an amendment, but the other 5 would probably vote to kill it. Then it’s even harder to get anotehr one through (and get a court to uphold it), even after we get anotehr justice or two, given the precedent that would set.

[SunkenCiv]

Here is the amendment as it is now being promoted in California:

The term "person" applies to all living human organisms from the beginning of their biological development, regardless of the means by which they were procreated, method of reproduction, age, race, sex, gender, physical well-being, function, or condition of physical or mental dependency and/or disability.

Thanks cmj328.

[jwalsh07]

The argument would be that since that which is newly conceived is no more independent than an arm or a liver, it does not meet the definition of organism and therefore does not comply with the definition these folks are pushing.

Do you think arguments made from biological ignorance are valid?

Because the argument you make here is laughable in it's ignorance.

[jwalsh07]

Roe v. Wade never addressed the issue of personhood.

Congress can define persons to include the unborn. In fact they can do it at any point in the unborn babies life. And the SCOTUS would have diddly squat to say about it.

[sitetest]

Dear mvpel,

In law, the question of whether someone is wanted or unwanted doesn't bear on whether you may lawfully kill him when he enters your house.

The question revolves around two interrelated issues: does he have a legal right to be there and; is it reasonable to assume that he is a real threat to your life or limb?

It would generally be difficult to answer these questions in the negative for a baby in his mother's womb.

sitetest

[sitetest]

“...answer these questions in the negative for...”

should be:

“...answer these questions against the interests of...”

[KrisKrinkle]

“Do you think arguments made from biological ignorance are valid?”

You could say any argument that gets one what one wants is valid for the purpose of getting one what one wants, whether or not the argument is valid in other ways.

“Because the argument you make here is laughable in it’s ignorance.”

Then it should be easy for you to refute. Do so. And try and be more constructive than you were in post 12.

[jwalsh07]

The argument would be that since that which is newly conceived is no more independent than an arm or a liver, it does not meet the definition of organism and therefore does not comply with the definition these folks are pushing.

Unborn babies are organisms with independent and unique DNA at any age. A liver is an organ without independent and unique DNA forever. An arm is an appendage without independent and unique DNA forever.

Perhaps you see now why your argument was laughable. Perhaps not, it depends on your willingness to learn biology I guess.

[KrisKrinkle]

Unborn babies are organisms with independent and unique DNA at any age. A liver is an organ without independent and unique DNA forever. An arm is an appendage without independent and unique DNA forever.

See? That was so easy you should have done it the first time you responded to me in your post 12.

Perhaps you see now why your argument was laughable. Perhaps not, it depends on your willingness to learn biology I guess.

You really need to cut out the belittling crap. I can ignore it but other people read this stuff too and it doesn't advance the cause or convince anybody of anything while it does reflect badly on you and, by association, others who share your views.

Now, in the face of your refutation, what if my statement is changed to:

"The argument would be that since that which is newly conceived is can exist independently no more independent than an arm or a liver, it does not meet the definition of organism and therefore does not comply with the definition these folks are pushing."

And what would you propose for definitions of "person" and "organism"? The definitions should be ones that already exist.

[matthew fuller]

It seems to me, IMHO, that this issue has been decided by the Arkansas Supreme Court. http://www.kaisernetwork.org/daily_reports/print_report.cfm?DR_ID=4568&dr_cat=2

[mvpel]

I didn’t say it wasn’t absurd, but when has absurdity ever been an obstacle to the abortionist death cult? They still cling to the absurdity that the unborn are not human.