Pro-life organizations are trying to build support for the legal definition that an unborn child is a person to exploit a weakness that was cited by author Harry Blackmun when he wrote the creative Roe V. Wade abortion precedent in 1973.
But their work has generated a huge argument within the pro-life movement: whether it’s better to chip away at the opportunities abortionists have to conduct their business or a challenge should be mounted to confront Roe’s very premise that the unborn are only tissue.
WND reported earlier when several pro-life organizations launched an advertising campaign that was critical of other pro-lifers for their praise for the U.S. Supreme Court’s partial birth abortion decision, which said some procedures could be restricted.
Groups including Focus on the Family noted it was the first court opinion in years that actually supported abortion restrictions and said it was a moral victory, while others including the America Life League countered that the court ruling actually would not prohibit a single abortion, just a way of doing them.
That argument has been raised to a new level now, with opinions from some of the top legal experts in the pro-life camp squaring off in a sort of debate at the Personhood.net website.
Dan Becker, spokesman for the Georgia Right to Life, which is working on a state constitutional amendment that simply would declare that an unborn child is a person from the moment of fertilization, said the concept of personhood was pointed out by Blackmun in his original declaration of the right to an abortion, and it shows the legal precedent is living on borrowed time.
“We believe the Georgia Human Life Amendment provides a substantial challenge to Roe v. Wade,” he said.
On the website comes a posting from Robert Muise, of the Thomas More Law Center, who is arguing that the amendment recognizes the “inviolable right of every innocent human being to life” as well as defining “person” as applying to all human beings, irrespective of age, “including … unborn offspring at every state of their biological development, including fertilization.”
“It is important to bear in mind that the proposal establishes a constitutional principle; it does not enact criminal or civil legislation. And it establishes a constitutional principle that provides a direct challenge to the fundamental holding of Roe v. Wade,” he wrote. “Without a direct challenge to Roe, any proposal to protect innocent human life from abortion is utterly meaningless.”
He said for 30 years pro-life activists have “shied away” from a direct challenge to Roe, choosing an approach that advocates for victory one step at a time.
“After these 30-plus years, we still have Roe and abortion-on-demand through all nine months of pregnancy. The proposed constitutional amendment seeks to change that. Consequently, this proposal is not for the faint of heart. It is for those who are committed to changing the status quo and who have the will to see it through,” he said.
“If the intent of the Georgia Legislature is to simply pass yet another abortion law or constitutional amendment that does nothing to challenge Roe, then we suggest that you consider other options and proposals. If the Georgia legislature wants to ban abortion and has the fortitude to take the fight to the Supreme Court, then it must act boldly and directly challenge the fundamental flaw of the Roe decision,” he said.
Roe determined that “the unborn is not a person within the meaning of the law,” he said, and that can be its downfall.
It was the Roe author, Blackmun, who concluded: “(If the) suggestion of personhood [of the preborn] is established, the [abortion rights] case, of course, collapses, for the fetus’ right to life is then guaranteed specifically by the [14th] Amendment.”
“Thus, the personhood of the preborn child is the single point on which the entire debate turns,” Becker said.
In the Roe decision, the court said, “We need not resolve the difficult question of when life begins. When those trained in … 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.”
Said Richard Thompson, president of the Thomas More Law Center, the Georgia amendment is “the best legal means of overturning the central holding of Roe v. Wade. … For too long the pro-life movement has been dominated by a strategy of ‘wait’ – too fearful of losing to risk winning.”
The Georgia plan, the “Paramount Right to Life” Amendment, H.R. 536, is being offered by a bipartisan group of Georgia lawmakers.
“It is time that the citizens of Georgia be able to speak decisively to this most fundamental right,” added Caryl Swift, president of Georgia Right to Life.” The goal is for the plan to be presented to Georgia voters in 2008.
However, legal experts for another highly visible pro-life organization, the National Right to Life, are warning that to set up a challenge to Roe v. Wade – and then lose – is not without cost.
“The [U.S. Supreme] Court (if it does review the case) is likely to switch to a more absolutist equal protection rationale for the abortion right, and all current regulations on abortion would be subject to, and likely struck down under, this new rationale. This would have a devastating effect on current protections for the unborn,” said an analysis by James Bopp Jr. and Richard E. Coleson.
They affirm an approach that protects the abortion restrictions that already exist, and continuing to create additional limits and boundaries.
“If the U.S. Supreme Court, as presently constituted, were to actually accept a case challenging the declared constitutional right to abortion, there is the potential danger that the Court might actually make things worse than they presently are,” the analysis continued.
“A vital battle stratagem is to choose proper terrain – favorable to you, unfavorable to your foe. To change the hearts and minds of the public on abortion, it is necessary for pro-lifers to frame the debate to their advantage. Pro-life leaders have wisely focused on this strategy. The debate over partial-birth abortion has furthered this strategy because it has forced the pro-abortion camp to publicly defend a particularly visible and gruesome practice,” the analysis said.
“Normally pro-abortion N.Y. Sen. Moynihan showed the difficulty of the terrain for our opponents when he declared PBA to be infanticide and beyond the pale of civilization,” the group said.
“By contrast, the pro-life movement must at present avoid fighting on the more difficult terrain of its own position, namely arguing that abortion should not be available in cases of rape, incest, fetal deformity, and harm to the mother. While restricting abortion in these situations is morally defensible, public opinion polls show that popular support for the pro-life side drops off dramatically when these ‘hard’ cases are the topic … This is an important debate to have, and we should be ready to convince the public of the need for few, if any, exceptions to laws prohibiting abortion when such laws can be upheld,” the group said.
“Eschewing incremental efforts to limit abortion where legally and politically possible makes the error of not saving some because not all can be saved. … The pro-life movement requires passion, to be sure, but it must be tempered by wisdom, judgment, and charity. The babies deserve no less,” the group said.
Muise said the Bopp memo can be summed up with, “They fear losing at the risk of winning.”
“We must never forget that ending all abortions is the ultimate goal,” he responded. “Protecting innocent human life is not negotiable. … It would be a tragic mistake to be content with a strategy that makes ending abortion secondary to other regulatory efforts, or worse yet, a strategy that avoids it altogether,” he said.
“We are in this fight to win, not to go on in perpetuity, content with an occasional ‘honorable mention,'” he said.
“A case must be presented to the United States Supreme Court that challenges the central premise of Roe – that the unborn is not a person within the meaning of the law,” he added.
“While terrain is important, victory is not secured by simply holding terrain – it is secured by defeating the enemy,” Muise wrote. “The status quo is unacceptable.”
Becker told WND that the Rutherford Institute also has come out in favor of human life amendments in all 50 states.
“Now is the time. You have attorneys … enthused for a facial challenge to Roe. We believe that there is no better time than the present …but it’s going to take a case that will challenge Roe on its face,” Becker said.
As WND reported earlier, Becker said his state organization took on the approach of challenging abortions headon several years ago, and has made unprecedented progress since then.
“We have to take the position that aligning ourselves with God’s Word produces the most positive results,” he said.
He said pro-life advocates in the state of Michigan got the idea started, and Georgia has taken it on as its own. Now other states, including Colorado, are pursuing the strategy that abortion is abortion and the Bible doesn’t allow it.
Mark Crutcher, chief of Life Dynamics agreed that abortion must be stopped and arguing over how to do that accomplishes little.
After the Supreme Court allowed the limits on partial birth abortions, he said, “So my advice is (a) pause for a moment to celebrate the victory, (b) don’t read more into it than is actually there, and (c) get back to work. Babies are still dying.”
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