“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.”
(Story continues below)
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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.