Clarke D. Forsythe is senior counsel at Americans United for Life.
Last month, a federal court upheld South Dakota's law that women seeking abortion be informed "that the abortion will terminate the life of a whole, separate, unique, living human being." This is good news for people who believe women should have full information about abortion. But make no mistake: The South Dakota law will not, as some pro-lifers believe, pose a "challenge" to Roe v. Wade.
The law is consistent with the trend in criminal and tort law toward protecting the unborn as human beings. In recent decades, legal protection of the unborn as persons has developed state by state through fetal-homicide and wrongful-death laws. Today, 36 states have fetal-homicide laws, 24 of which protect unborn children from the time of conception, and 38 states have wrongful-death laws, which protect unborn children at least after viability. (As a practical matter, however, the application of these laws has been limited by the U.S. Supreme Court to incidents other than abortion - e.g., vehicular homicide.)
Over the past few years, a very different legal definition of "personhood" has been proposed in various states. These "personhood" proposals have the specific aim of "challenging" Roe, yet they are heading toward a brick wall, because they are based on a clear misreading of Justice Blackmun's language in the 1973 decision.
The proposals sometimes attempt to define human life as beginning at conception (or fertilization). That's well and good, if properly drafted, and such laws are in force in many states. But the mistaken belief is that such a definition will repair an omission in Roe or present facts that the Court didn't know about. This is wrong for several reasons.
The myth has been widely reported that Justice Blackmun stated in Roe that "we don't know when life begins." Some state legislatures have come to believe that they can answer that question by asserting that life begins at conception. What Blackmun actually wrote (pp. 156-157 of the Roe opinion) was: "The [state of Texas] argue[s] 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, [Jane Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."
Nevertheless, the urban legend has spread throughout the Web. The standard description is captured in the following excerpt from a website called "Christian Life and Liberty":
According to the 1973 Roe v. Wade decision, personhood "collapses" the abortion "legal" [sic] argument:
The 1973 US Supreme Court Roe v. Wade decision instructed that if "personhood" for the "fetus" was established at fertilization, with no exceptions, then the [so-called] "legal" [sic] argument for abortion "collapses" ["[so-called]" and "[sic]" in the original].
There are several fundamental problems here. First, this is a classic case of reading the language out of context. The phrase "suggestion of personhood" in Blackmun's opinion clearly refers to the earlier phrase "within the language and meaning of the Fourteenth Amendment." It does not mean "personhood" in any broader medical, moral, or legal sense. Blackmun is emphasizing the meaning of "person" within the 14th Amendment.
Second, no state can - by statute or constitutional amendment - change the meaning of the 14th Amendment to the federal constitution. The 14th Amendment can be changed only by another federal constitutional amendment or by the U.S. Supreme Court's changing its interpretation of the 14th Amendment.
Thus, the following extrapolation from Blackmun's language (on the same website) is clearly wrong:
Establishing in law (by statutory change to the state's code of laws, or by a state constitutional amendment) legal "personhood" for pre-birth human beings, at fertilization, with no exceptions, satisfies the requirement spelled out in the infamous 1973 Roe v. Wade decision, to "collapse" the [so-called] "legal" [sic] argument for abortion."
Third, the misguided argument then quotes footnote 54 of Blackmun's opinion, without realizing that Blackmun is being ironic:
"Exceptions" to legal "personhood" are unconstitutional, as explained in the text of the 1973 Roe v. Wade decision, and in a Justice Blackmun footnote therein [emphasis added]:
"When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists . . . But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?...."
Blackmun is not seriously entertaining personhood; it's clear from the context (and from the rest of the Roe opinion) that he rejects it as nonsense. He is not saying that exceptions are "unconstitutional" and never uses such language. The urban legend has it exactly backwards: The Texas statute does not define the meaning of the 14th Amendment; the 14th Amendment defines the validity of the Texas statute.
If Blackmun had seriously entertained the notion that the 14th Amendment protected the unborn, the Texas statute would not have impeded him; the Court could have struck it down. Blackmun set up his sneering contradiction only after concluding that the 14th Amendment did not protect the unborn. He thought his manufactured scenario would lampoon Texas's case.
Thus, the following extrapolation on the website is also obviously wrong:
"Personhood" legislation, by statutorily vesting legal "personhood" at fertilization for ALL human beings, satisifies [sic] the Roe formula published over 36 years ago.
The key legal issue presented in the very text of Roe, necessary to unravel the entire Roe framework, is statutorily vesting legal "personhood" at fertilization for ALL human beings, with no exceptions. . . .
In other words, pass "personhood" legislation in your state, as a bill, or as a constitutional amendment, and according to the U.S. Supreme Court Roe v. Wade decision itself, [so-called] "legal" [sic] abortion is over in that jurisdiction.
Basing state personhood amendments on extrapolations of Blackmun's language in Roe is futile. This does not mean that establishing some form of legal personhood in the states is not a worthy goal. It simply means that (because of our system of federalism) it will not - it cannot - establish 14th Amendment personhood or set up a test case to overturn Roe.
First, not one justice on the current Supreme Court supports the proposition that the unborn are protected as "persons" within the meaning of the 14th Amendment. Not one. All have rejected it, explicitly or implicitly.
Second, these proposals would be better designed if they followed the Missouri statutory preamble enacted in the 1980s:
1. The general assembly of [Missouri] finds that:
(1) The life of each human being begins at conception;
(2) Unborn children have protectable interests in life, health, and well-being;
(3) The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
2. Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
Since the U.S. Supreme Court reviewed the Missouri preamble in the 1989 Webster case and found it constitutional, the preamble has been applied by Missouri courts to extend protections for unborn children in non-abortion situations.
Third, state legislation concerning fetal development will not supply facts that the justices are not already aware of. Justice Blackmun clearly thought he understood the "well-known facts of fetal development" in 1973. Moreover, the two partial-birth-abortion cases in 2000 and 2007 amply supplied facts about the humanity of the unborn and what abortion does to the unborn child. Even the most pro-abortion justices acknowledged this by noting that D&E (dilation and evacuation) abortions are no less brutal than D&X abortions. The Supreme Court's majority opinion in the 2007 Gonzales case used the words "kill" or "killing" at least 18 times to describe abortion. The problem is not that the justices do not understand, but that they do not care.
Fourth, legislation is needed that will protect the unborn, but there's no reason to believe such legislation will be an effective vehicle to challenge Roe, given the Court's current composition. And while public education about fetal development will always be important, the notion that such facts will have a significant impact on the current justices is based on a profound misunderstanding of why most of those justices support Roe.
The emphasis on the unborn child completely overlooks the fact that the Court's rationale for the abortion "right" shifted dramatically in the 1992 Casey decision, where it became a sociological rationale that women need abortion as a backup to failed contraception. Facts about fetal development have no bearing on this sociological rationale. The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women.
Finally, with the confirmation of pro-abortion Justice Sotomayor, and the likelihood that President Obama will have the opportunity to nominate more pro-abortion justices in the next three years, there is no chance that the Court will reconsider Roe as long as Obama is in office. Justice Scalia (who should know) plainly told a legal audience in Europe a few years ago that there was not a majority on the Court to overturn Roe. That's even more certain today.
There are other goals that are more important - and more achievable in the current environment - than an illusory test case to "challenge Roe" based on questions that the current justices simply aren't asking.
By Clarke D. Forsythe
Reprinted with permission from National Review Online