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Personhood is Right for Wisconsin, Part I: Why Personhood is a Good Idea
The battle for the soul of the pro-life movement is being waged between a pair of cheap office suites in the Milwaukee suburbs.
In the challenger’s corner, scrappy Pro-Life Wisconsin is working to pass an amendment to the Wisconsin Constitution that would recognize the equal rights of all human beings, from conception to dotage. In the champion’s corner, heavyweight Wisconsin Right-to-Life, standard-bearer for the pro-life cause, official affiliate of the National Right-to-Life Committee, and oldest pro-life org in the state, is campaigning to… block the law giving equal rights to the unborn.
Pictured: The War for the Soul of the Pro-Life Movement, Brookfield theatre. Following a skirmish which, according to survivors, raged "from North Avenue to the horizon," combatants called a cease-fire so they could grab pizza from that weird Italian place on Blue Mound Road at Thomas Lane.
I’ve written about this controversy before, but, even among pro-lifers, this is a fairly obscure conflict, so I’ll begin my series on Personhood Wisconsin with a recap.
Wisconsin, like a few other states, has a state law forbidding abortion. The only exception is if three physicians deem abortion “necessary to save the life of the mother.” All other abortions are punished as minor felonies, with a maximum of six years in prison for the abortionist. (The mother is immune from prosecution because of a separate state law.) This makes abortion about as serious, under Wisconsin law, as battery or possession of child pornography. The Wisconsin law defining abortion as a minor felony is called Section 940.04. Remember that number, because I’m going to use that name throughout the rest of this series.
Of course, as in every state, Section 940.04 is effectively off the books right now, because Roe v. Wade and Doe v. Bolton guarantee the mother’s right to abort her child at any point in pregnancy for virtually any reason, everywhere in the United States. Even though Section 940.04 is still officially in place, no court will enforce it. If a police officer arrested the abortionist down at the Appleton Planned Parenthood for performing abortions, the court would say, “Yes, the defendant has violated state law, but Wisconsin state law violates the U.S. Constitution. See Roe. Case dismissed.” In legal parlance, Section 940.04 is unenforceable for as long as Roe v. Wade remains the recognized law of the land.
Abolitionists in Wisconsin, then, like abolitionists in all states, have three main concerns: (1) overturning Roe, (2) undermining Roe, and (3) preparing for the post-Roe world. We overturn Roe by getting good judges on the Supreme Court, who either recognize the personal rights of all human beings under the 14th Amendment or, at the very least, recognize that the Constitution certainly confers no positive right to abortion. (That often means getting in bed with the Republican party, which can be very hard for some in the movement.) We undermine Roe by putting a human face on the unborn child. We use the most egregious barbarisms of the abortion rights movement against it, chipping away at the foundations of Roe by forcing Americans to confront an ideology that is comfortable defending partial-birth abortion, assailants who cause pregnant women to miscarry, and even straight-up infanticide. This confrontation leads Americans to notice what they’ve always known: unborn children are not “potential life” without autonomy or rights , but actually the most vulnerable members of society, demanding our sympathy and protection, whether they’re eight months along or still single-celled. Finally, we prepare for the post-Roe world by putting in place state-level protections against abortion. We maintain bans where we have them, expand them where we don’t, and fortify them against interference by the courts or special interests. The objective, for abolitionists, is twofold: (1) to have the deliberate and directly intended killing of any human being at any stage of development universally condemned as murder, and (2) to institute a humane medical system that treats both mothers and their children as patients.
The Personhood Amendment is an attempt to address all three concerns with one change to the Wisconsin Constitution. Article I, Section 1, which is about equal protection of the laws, would be amended. The proposed text is below; I have put Personhood’s additions in bold and Personhood’s edits to the current text in strikethrough:
All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed. As applied to the right to life, the terms "people" and "person” shall apply to every human being at any stage of development.
The Amendment is intended to operate on three levels, which I will enumerate from weakest to strongest.
First, Personhood provides a faint opportunity to directly challenge Roe v. Wade. Wisconsin Personhood supporters state that the amendment “is not intended, or worded, as a challenge to Roe, nor is it an attempt to define personhood under the 14th Amendment,” but, as Wisconsin Right-to-Life points out, their intentions do not necessarily prevent the challenge. Roe’s logic (as well as the logic of the subsequent Casey decision) is built on the Supreme Court’s finding that unborn children are not people, and therefore have no rights. Wisconsin law, post-Personhood, would state that unborn children are people, and therefore have rights. That’s a contradiction, right? When laws contradict, there’s room for a court case. Now, in reality, because of federalism, precedent, the rules of legal construction, and half a dozen other things, it is unlikely that any lawsuit would advance to a meaningful level at all, and extremely unlikely that it would advance to a friendly Supreme Court that would actually overturn Roe. The most likely outcome of a case would be dismissal. The next-most-likely outcome would be that the courts decide the Personhood Amendment can’t apply to unborn children until Roe is overturned by some other means, leaving Wisconsin law exactly as it is today. In the latter case, Planned Parenthood would possibly win a few hundred thousand dollars in court costs. Planned Parenthood has tried to paint Personhood as an immediate, blanket ban on abortion, and I wish they were right, but that’s actually the least likely outcome of the Amendment. For this reason, I believe that Personhood’s supporters should not even pursue this route; if a Roe vs. Personhood court battle is launched, let it be launched by abortion supporters trying to weaken Personhood, not Personhood supporters trying to attack Roe.
Second, Personhood puts a human face on these human beings. As a friend of mine put it to me once, “The law is a teacher.” What we put in our lawbooks shapes our culture. If Personhood were passed, the state of Wisconsin would solemnly proclaim, in its key legal text, that the unborn have rights, that all men are created equal, no matter how much the unelected philosopher-kings who run the courts insist otherwise. In doing so, the law would affirm and reinforce what Wisconsonites already know, at a gut level: that abortion, no matter how you justify it, is the killing of a human person. It would settle one of the most important parts of the abortion debate for the purposes of legislative deliberations, and strengthen the pro-life intuitions of the electorate. These effects of Personhood are largely intangible, but they are arguably the most important element in creating a culture of life, rather than just a legal code enforcing it. In pursuing intangibles, Personhood maintains the longstanding pro-life strategy of scoring symbolic victories. Earlier examples include the Partial-Birth Abortion Ban Act, which prevented exactly zero abortions, Webster v. Reproductive Health Services of Missouri, which established a state’s right to claim that human personhood begins at conception (as long as it had no other legal impact), and, if we’re being honest, essentially every abortion “restriction” American pro-lifers have passed since the Casey ruling. For twenty years, the pro-life movement has sought to cultivate Americans’ moral sense about abortion more than it has tried to legally restrict abortion. Personhood advances that effort.
Third, and most importantly, Personhood prepares Wisconsin for the post-Roe world. Sometimes, pro-lifers believe that overturning Roe will be the end of our battle. In fact, the fall of Roe will not outlaw abortion; it will simply return the issue to the states to decide. Abortion rights advocates will wage a fifty-front war, in the courts and legislatures of every state, in order to preserve their “right” to extinguish the unborn. Wisconsin’s anti-abortion law – Section 940.04, which I discussed above – is already imperfect. It makes abortion no more serious than embezzlement, and it treats the unborn child like a virtuous tumor, not a human patient. But it’s worse than that: in a post-Roe world, Section 940.04 is not safe from the Wisconsin court system! Without the Personhood amendment, Article I, Section 1 of the Wisconsin Constitution appears to imply that human rights begin at birth. Moreover, the Wisconsin Constitution uses right-to-privacy language (Article 1, Section 11) that "mirrors" a section of the U.S. Constitution – the same section that allowed the U.S. Supreme Court to invent a Constitutional right to abortion.
It gets even worse, dear readers: Wisconsin has a law (Section 995.50) that specifically guarantees the right to privacy – which activist judges throughout the nation have falsely construed to include abortion. When you think that anti-abortion laws invade a mother’s privacy, and your state Constitution doesn’t appear to protect the rights of the unborn, what’s going to happen? As everyone in Wisconsin knows after the David Prosser election, the rule of law on the Wisconsin Supreme Court is currently maintained by only one vote. If Roe should fall when Wisconsin happens to have a pro-abortion governor like Russ Feingold and the Supreme Court just happens to be in the hands of anti-fetal judges at the time – a strong possibility, given Wisconsin’s basic political geography – the Wisconsin Supreme Court will strike down Section 940.04 all over again, creating a new and unlimited right to abortion in Wisconsin under the Wisconsin Constitution.
This is not some alarmist prediction designed to convince Wisconsin voters to back Personhood. This is a grave and ongoing threat to the unborn of Wisconsin. Personhood is one way to patch the hole in Wisconsin law and fix the threat, but, even if Wisconsin voters reject Personhood, this is a real problem, and Wisconsin pro-lifers must find some way of addressing it. Wisconsin has one of the nation’s stronger anti-abortion statutes in Section 940.04, but Wisconsin also has one of the worst state constitutions in the nation for the unborn. The state is deeply underprepared for the post-Roe world. Personhood would solve the problem quickly and simply: by guaranteeing that human rights begin at conception, Wisconsin courts would have no choice but to accept them, protecting the unborn from the pro-life movement’s fatal mistake of being content with Section 940.04 as it stands today – alone.
That is the case for the Wisconsin Personhood Amendment: it addresses all three concerns of the pro-life priorities, and it wins a couple of critical battles that other strategies have not been able to deliver to abortion abolitionists.
Moreover, the Personhood Amendment is true: people are people, no matter how small, and Personhood fixes Wisconsin law so it says so. This is not insignificant. A victory for the truth is a victory in itself.
Now, there are arguments against Personhood. The strongest argument is that there’s a reasonable chance that Planned Parenthood would sue, win in federal court, and pick a couple hundred thousand dollars in attorneys’ fees from our pockets. Furthermore, although I have argued on behalf of other, more aggressive Personhood initiatives (like Mississippi’s failed Initiative 26), pro-life luminary James Bopp has argued that measures more aggressive than Wisconsin’s carry much higher risks to pro-lifers with much more limited rewards. While I don't agree with his conclusions (thanks, in large part, to Robert Muise's reply), Bopp raises prudent arguments that merit due consideration, when they obtain. They do not, however, apply to Wisconsin, where, unlike Mississippi, supporters are not seeking a frontal assault on Roe and there is no risk of so-called “implied repeal”. Others have suggested that it is simply unwise for our movement to become openly and insistently abolitionist, because to do so would place us too far outside the political mainstream (I won't name names). I consider that position shameful and offensive, but, as I often remind myself, slavery was abolished by a moderate, self-interested politician named Abe Lincoln. Our movement needs the cautious as much as it needs the reckless, and their objection is worth listening to.
However, in the particular circumstances of Wisconsin, it seemed to me at first that the benefits of passing Personhood clearly outweighed the risks. So I was surprised to learn that Wisconsin Right-to-Life, the state’s pro-life establishment, was not merely withholding support from Personhood (which would have been unfortunate, but understandable, given WRtL’s limited resources), but actually campaigning against Personhood. It didn’t help that the reasons they gave on their website appeared to be, legally speaking, poppycock. I resolved to find out what WRtL’s thinking is, so I wrote to a close friend of mine who has worked closely with WRtL for a long time and asked some (I admit) rather pointed questions. Eventually, after some conversations, the organization forwarded me its legal “white paper” discussing its opposition to Personhood. I read it, thought about it for a few weeks, read it again, wrote about it for a couple of weeks, ran it by some respected friends, rewrote for a couple more, and finally reached some conclusions.