In 1972, when Chief Justice Warren Burger appointed Harry Blackmun to write the majority opinion on Roe v. Wade it was at first rejected. Blackmun at first argued that a woman had a right to do whatever she pleased with her own body. This argument was rejected by Burger because it did not apply to drugs, public nudity, suicide attempts, and so on. It was too unsophisticated an argument for such a difficult case. Blackmun filed for a reargument and waited for Nixon to fill two vacancies on the nine member court (Roe was originally decided with seven). In October, the court heard rearguments with new appointees Powell and Rehnquist. This time Justice Stewart asked Sarah Weddington if it was critical to her case to say that the 14th amendment did not protect the fetus as a “person.”
He asked: “If it were established that the fetus is a person, within the protection of the 14th amendment, you would have almost an impossible case here, would you not?”
“I would have a very difficult case,” Weddington said.
Robert Flowers, representing the defense, asked, “Is the life of this unborn fetus paramount over the woman’s right to determine whether or not she shall bear a child? This court has been diligent in protecting the rights of minorities, and, gentleman, we say hat it is a minority, a silent minority, the true silent minority. Who is speaking for these children?”
Weddington responded that her case was not to advocate abortion. It was to advocate that the decision was within the purview of the woman and her doctor and not the state. This has been the pro-choice argument all along — that “choice” is protected by a constitutional right to privacy. Without getting into all the arguments over whether such a “right to privacy” can be established in the United States Constitution (and I think it cannot) let’s suffice it to say that most Americans are sympathetic to this idea. They are not, however, sympathetic to abortion on demand through all nine months for any reason.
To make a long story short, Blackmun compromised and decided that late term abortion was problematic, but first trimester abortion and up to the time of viability could be protected in certain situations (rape, incest) under the “right to privacy.” The decision said that the states still had a compelling interest to regulate abortion after the time of viability. In effect, it recognized the Pershonhood of the fetus after viability.
Blackmun stated that “… it must be stressed that the court does not hold that the Constitution [provides] abortion on demand.”
In fact, he wrote in the decision, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of 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.”
It’s ironic that pro-choice advocates have used this to argue that we cannot know ever when life begins “because of the wide range of beliefs on this sensitive issue.” But this postmodernist statement leaves open the possibility that we cannot ever make moral judgments about anything. If the vast majority of Americans see it as self-evident that killing a baby in the womb for the sake of convenience is murder, then we can legislate this moral truth into civil law.
The vast majority of Americans believe that the baby is fully human at viability. Yet we have abortion on demand through all nine months. A sizeable majority in at least 34 states (enough to enact a Constitutional Amendment) believes that life begins at conception or sometime in the first six weeks (the time when virtually no elective abortions are performed). Yet we have abortion on demand through all nine months for any reason.
“Personhood” is therefore the right language.
What happened after Roe.
Roe v. Wade still allowed states to restrict abortion. Doe v. Bolton then extended the right to privacy throughout all nine months. It swept away any notion of Personhood overriding the right to choose. Here it is important to understand the long term strategy. Even if a state-by-state Personhood Amendment fails to overturn Roe, it could result in returning the states to a pre-Doe scenario which might eliminate the 95 to 98 percent of abortions, which are provided on demand for any reason.
The Supreme Court fiat law had the effect of liberalizing abortion even in the few states that already had the most liberal abortion laws. Even the pro-choice Ruth Bader Ginsburg has written that the Court “went on to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law in force…. the Roe decision left virtually no state with laws fully conforming to the Court’s delineation of abortion regulation still permissible. Around that extraordinary decision, a well organized and vocal right-to-life movement rallied.”
It’s interesting to note that even one of the most outspoken pro-choice Supreme Court Justices sympathizes with the thinking of the pro-life movement due to the top-down comprehensive enforcement of a policy that she agrees with. It is not impossible that even some of the “liberal activist” justices would side with the idea that the states should decide the issue for themselves. In fact, it would be even more difficult for our pro-abortion opponents to argue that this is a “Republican regime” instituted decision if even one Democrat-appointed Justice recognized the constitutionality of the Amendment — by virtue of the fact that it was decided by the people of one of the 50 states.
“Personhood” is therefore the right language and the correct strategy.
The Supreme Court is not the only avenue through which to overturn the effect of Roe.
Here’s a truly radical idea. Let a majority of the voters or state legislators in 34 states decide when the life of a person begins. In the current climate of distrust and creeping federal tyranny, this strategy to go back to the root of our democratic process — the will of the people — is well-timed. Still it might seem to some on the surface a random, quixotic campaign to go after the difficult liberal states such as California and Colorado. Admittedly it is a Herculean task to collect 700,000 or more signatures in the huge state of Florida. But in doing so, we are pressing the antithesis. We are trying to raise the bar, so to speak, in the most difficult states so that when we have our first victory in a state like Mississippi, it will cause a tidal wave of support in more conservative states where it will pass more easily.
All that is needed is a “yes” vote in 34 state legislatures to enact a Personhood Amendment to the United States Constitution. Even if this is struck down in one state by the Supreme Court, they can’t resist the two-third majority clause in the Constitution itself.
“Personhood” is therefore the right language and the correct strategy at the right time.
Does the culture change the law or does the law change the culture?
It is meaningless to talk about changing the law unless we are actively involved in changing the beliefs and values that govern us as individuals through discussion, debate, teaching, symbolism and active demonstration. Even with a Supreme Court overturn of Roe, we would still have a long way to go in changing the United States from a culture of death to a culture of life. Every law currently in place that places a restriction on abortion is in fact a legal precedent that affirms Roe v. Wade. Even if Roe were struck down tomorrow, these incremental measures would stand even in states that had a ban or restriction on abortion prior to Roe.
“You must have parental consent, a five day waiting period, and an ultra-sound, then you have the legal right to kill your baby!”
That is the standard presented by many “pro-life” measures at this time. This is no way to build a culture of life. We cannot affirm the right to life by applauding legal child murder only in some circumstances. The way to affirm a culture of life is to legally define the personhood of a human being from the beginning of biological development.
Personhood is an incremental step in that regard.
We can legally define “the beginning of biological development” of an individual. We can further define that biological development as constituting a human life, a legal “person” and a “natural person.” That will change the culture.
In the state of Florida, to eventually get 60 percent of the voters to agree to this as a ballot proposition, first we must ask eight percent to think about it and agree with their signatures that such an amendment is needed. Even if we fail to get the signatures needed, we are actively engaging in evangelism. We are working to get the hearts and minds of people lined up with truth. People who have never evangelized before will lead people to Christ through their petitioning. That will change the culture.
When we get the amendment on the ballot, there will be a huge fight. A debate over abortion and when life begins has never occurred in our culture at large. Legalized abortion for any reason through all nine months of pregnancy was enforced from the top down in most states by a Supreme Court decision. Even in states that had legal abortion, there were restrictions that were knocked down by Roe v. Wade and Doe v. Bolton. For the first time in 37 years, we will be calling on the free will of the people to decide for themselves. That will change the culture.
If the measure fails in Florida, we will keep trying in other states until one passes. Within 24 hours there will be a legal injunction by a higher court that calls on the state to not enforce laws regulating or banning abortion. At that point, the Supreme Court will decide whether to hear the case. Even if we lose, we win. It will be establish a clear cut division between the will of the courts and the will of the people. That will change the culture.
Then we will seek to pass such amendments and resolutions in other states. That will change the culture.
We will eventually get such an intitiative passed in 34 of the so-called “red states” — enough for a United States Constitutional Amendment that will protect the life of a person from the beginning of biological development. Roe will be moot. Now longer will it be the fiat “law of the land” enforced by judicial tyranny. It will only apply to Roe and Wade. And I hear Jane Roe is now pro-life.
We can change the culture, but it must come from the will of the people, not through the courts. It must come through the states.
1. Through 2008, there were 24 voter petition initiatives on the Florida ballot since the process began in 1978 (in addition to legislative initiatives).
2. Of those 24, 20 were approved by voters.
3. Florida voters have approved a higher percentage of their statewide ballot measures than voters in any other state.
This position paper is not copyrighted and may be forwarded to anyone without prior permission.
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