.- Representatives of the Thomas More Society and the Pro-Life Action League say the defeat of Mississippi's “personhood” initiative does not mark a serious defeat for the pro-life movement.
“The number one argument we hear, is that this is the 'silver bullet' that is going to overturn Roe v. Wade and end abortion in America. I'm not convinced that is at all the case,” said Pro-Life Action League Executive Director Eric Scheidler.
“If one were to be passed, would it survive a federal court challenge? There's really no good reason to think it would,” Scheidler told CNA on Nov. 11.
The Pro-Life Action League's executive director supports the intentions of the “personhood” movement, which seeks to end abortion by extending legal rights to all humans from the moment of conception.
But he is skeptical about the personhood approach. So were Mississippi's Catholic bishops, who did not take a position either for or against the recent personhood initiative “Proposition 26.”
Supporters of that proposition lost their bid to amend Mississippi's constitution, when 58 percent of voters opposed it on Nov. 8.
But even if such a measure succeeded, Scheidler noted that it could only serve to overturn Roe v. Wade if a majority of Supreme Court justices were willing to question that ruling.
Without such a majority, the court could end up re-affirming a constitutional “right” to abortion as it did in the 1992 case of Planned Parenthood v. Casey.
“It seems unlikely that Justice Anthony Kennedy would join a five-vote majority in upholding the personhood of the unborn,” Scheidler observed. Justice Kennedy upheld a right to abortion in the 1992 case.
Some personhood proponents have told Scheidler that such calculations show a lack of faith. But he pointed out that God calls believers to be prudent and careful.
“God gives us the wisdom to look at the tools available to us, in the time in which we live, and choose what we think are the most appropriate tools to use for the task at hand,” he reflected.
In the view of Thomas More Society Special Counsel Paul B. Linton, personhood proposals are the wrong tools for the task of ending abortion.
“No justice on the Supreme Court – including the justices who dissented in 'Roe,' and Justices Scalia, Thomas, Roberts, and Alito – has ever expressed the view that the unborn child is, or should be regarded as, a 'person' as that word is used in the 14th Amendment,” Linton said in a Nov. 11 interview.
“Whatever you, or I, or anyone else, thinks about whether unborn children should be regarded as persons, what's important is what the justices think,” Linton pointed out. “And not one of them has ever expressed the view that the unborn child should be regarded as a 'person.'”
“That's why there's no support on the court for personhood – they just don't think the Federal Constitution addresses the issue one way or the other.”
Even the court's most conservative justices, he said, view the Constitution as neutral on the matter of personhood and conception.
“Justice Antonin Scalia filed a partial dissent in the 'Casey' case in 1992,” Linton said, recalling a dissent joined by others including Justice Clarence Thomas.
“In the opening paragraph, he said: the states may allow abortion on demand, if they so choose, but the Constitution does not require them to do so.”
Linton also said it was “naive” for personhood supporters to imagine they could “force the court to revisit” the abortion question.
“You cannot force the court to do anything. Their jurisdiction is almost entirely discretionary, and it would be with respect to any case like this. So I don't see a case like this even getting up to the Supreme Court.”
“If you had a state that passed a Mississippi-style measure, and it were challenged and struck down by a federal district court, that could be appealed to the court of appeals for that particular district,” he explained.
“However, once you're past that initial appeal, you no longer have a right to further review. You can only seek discretionary review from the Supreme Court.”
And Linton shares Scheidler's view that a review of Roe v. Wade might end badly in the current court.
“I think the court would reaffirm 'Roe.' It would be the fourth time for them to reaffirm it.”
Linton also criticized personhood supporters' inconsistency on the question of what their proposals would actually do if passed.
“Does this 'personhood' language have any effect in and of itself on state law? Or does this require the legislature to enact specific pieces of legislation to give it effect?” he asked.
“That's unclear. We don't know if it's self-executing or if it requires some sort of implementing legislation. If it's not self-executing, then what does it do? Does it do anything?”
“No one really knows what these amendments would do,” said Linton. “And the supporters of these measures don't seem to have a consistent position on that.”
Despite these concerns, the push to enact personhood has momentum. Alabama State Senator Phil Williams is already working on a similar proposal in his state legislature.
Scheidler remains unconvinced. “Maybe a better method is needed,” he said.
“Maybe we need to bring people first to recognize the humanity of the child at 20 weeks, at 10 weeks, at 5 weeks, and save all the babies we can right now.” Such measures, he said, have been “successful in backing the abortion industry into a corner in many states, especially since the 2010 election.”
Scheidler says these incremental methods are not a form of compromise, but a realistic way of working toward the pro-life movement's goal.
“We are all fighting for the same goal, which is an end to abortion,” he said.
He hopes activists focused on personhood can maintain good relations with those who choose other strategies.
“The folks working for personhood, and those in the pro-life movement who have expressed opposition to these measures, all share a common goal,” Scheidler said.
“If we can't agree on that, then I think the movement's in big trouble.”
“But we can. We need to respect the fact that there are going to be differing opinions about the best strategy to use, to achieve that common goal.”