Pro-life activists in a few states are now exploring the merits of amending their state constitution by ballot initiative with a state “human life amendment.” In considering the prudence of a state human life amendment (HLA), organizational leaders and activists should ask a number of questions about the meaning, potential impact, implications, and costs of state amendments and the ballot initiative process.
The overarching question, however, is prudential—connecting means to ends: What is the goal of a state human life amendment and, given the resources involved, is it an effective means to achieve that goal? Answering this overarching question requires prudent analysis and a realistic view of the current legal, political, and social environments in the state.
In the abstract, a state HLA is very appealing. Protecting human life is a fundamental principle and protecting it in the federal or a state constitution seems like an essential goal. If a constitution protects essential rights, the right to life should be part of that. But human lives are protected not by abstractions but by effective laws.
Constitutions are designed to control “state action,” the action of the different branches of state government—legislature, judiciary, or executive. Constitutions do not normally control the personal or private actions of individuals; traditionally, that has belonged to the territory of criminal law (a homicide code or abortion law). A state constitutional amendment that treated the unborn as a person under the due process or equal protection would touch only state action, not individual action (e.g. one person killing another). Essentially, this language would prevent the state from denying due process or equal protection of the laws to an unborn child from conception onward.
Furthermore, constitutions and homicide codes have different purposes. Currently, the strongest law to protect an unborn child in many states is a fetal homicide law, which treats the unborn child as a human being, like other human beings. Its scope however is blunted by Roe v. Wade—it can’t be applied to the situation of abortion.
Pinpointing the Problem
The typical purpose of a state amendment would be to redress a contrary state governmental action that violates human rights, such as a state high court decision creating a state “right” to abortion. The point of an amendment would, thus, depend on whether such a problem existed in the particular state.
Another problem that such an amendment might remedy is a legislature legalizing abortion. Although the U.S. Supreme Court (not the state legislature) has legalized abortion through Roe v. Wade, a human life amendment might be intended to prevent the legislature from approving abortion after Roe is overturned or from taking steps now to protect the abortion license in anticipation of Roe being reversed at some point in the future.
Rather than fix a particular state governmental problem, however, some have proposed that a state human life amendment would be a good vehicle to challenge the U.S. Supreme Court’s decision in Roe v. Wade.
Proponents of state HLAs frequently argue that an HLA is an effective vehicle to present medical evidence that human life begins at conception (evidence that was not available in 1973 when Roe was decided) and that it is this evidence that will cause the U.S. Supreme Court to hear the case and, ultimately, lead to Roe being overturned. However, the U.S. Supreme Court has refused at least nine times over the past 15 years to hear a case that directly challenges Roe using this same evidence. The most recent of such attempts occurred on October 1, 2007, when the Court refused to hear a case on appeal from the New Jersey Supreme Court, Acuna v. Turkish.
In Planned Parenthood v. Casey, the Court essentially reframed the abortion “right,” characterizing it as a “reliance interest.” The Court gave great deference to the fact that women had purportedly come to rely on the availability of legal abortion as a means to secure their places in the social and economic fabric of society. Thus, the Court, in reaffirming the right to an abortion, did not focus on when human life begins or when the unborn child’s right to life becomes paramount. The focus was on the woman, her health, her right to control her reproduction, and her expectations.
For these reasons, many in the pro-life movement contend that it is the negative impact of abortion on women (not an HLA) that will ultimately result in both a change in public opinion and a successful challenge to Roe.
Amending after Roe
Even if sought only after Roe falls, an HLA would have further serious legal, policy, and political implications that must be addressed.
First, a constitutional amendment is not self-enforcing—an HLA would still need a statutory prohibition for prosecutors to reach personal conduct, like a doctor performing an illegal abortion.
Second, an HLA would provide a standard against which any abortion-related legislation would be tested and could establish such a high standard that it would prevent the passage of anything less than an abortion law that provides equal protection for the unborn child beginning at conception.
For example, would an HLA allow a “life of the mother” exception in abortion legislation? Would an HLA allow women to be exempted from prosecution for abortion, as was the uniform policy of the states before Roe?
These questions readily suggest the following scenario. Imagine a situation in which pro-abortion legislators could prevent any prohibition law by simply preventing a perfect bill from passing. An HLA requires a perfect prohibition, but the pro-abortion legislators can prevent a perfect bill. Something less than a perfect prohibition (perhaps a partial prohibition, or a prohibition with a life of the mother exception) could be politically passed but it couldn’t survive court review because of the high standard of the HLA. Pro-abortion legislators, then, don’t have to prevent a prohibition bill from passing; they just have to prevent a perfect prohibition from passing. The HLA ends up empowering pro-abortion legislators by creating such a high standard that they can easily prevent the perfect bill.
Furthermore, at its enactment, an HLA (depending on how it is drafted) could be interpreted as repealing existing abortion laws in the state such as informed consent and parental involvement for minors seeking abortions. This could be the case regardless of whether the HLA ultimately survives judicial review. Is that a desirable scenario? Could those laws be re-enacted if necessary? In the current environment, this would seem to be a precarious gamble.
Many proponents of HLAs have argued that incremental laws such as informed consent, parental involvement, funding limitations on abortion, and other protective laws are “not working” and, thus, we must try an HLA. This argument ignores research proving that such incremental laws reduce abortions and help to educate others on the negative impact of abortion on women. In recent research published by the Heritage Foundation, Professor Michael New, formerly of the Harvard-MIT Data Center, provided compelling evidence that incremental abortion laws were responsible for the more than 17-percent decrease in abortions during the 1990s.
Finally, beyond the many legal issues raised are numerous political questions. The meaning and effect of the language of an HLA would be abused in the media and elsewhere, since the exact meaning and effect would be undetermined.
Conversely, laws that are addressed by the legislature have some history of its intended meaning and purpose, called “legislative history,” created by the debate in the legislature about the law. A law approved through the ballot initiative process has none of this, only the text. To whom would the proponents or the public go to ask for its authoritative meaning? In the final analysis, the people would go to judges–to the state supreme court.
If actually enacted, in the short-term, such an amendment would do nothing—or nothing with respect to abortion. The federal courts would most likely block its application to abortion, and the current U.S. Supreme Court would most likely never review the case.
If the objective of an HLA is simply to test public opinion or “make a statement in the state,” that’s not a sufficient justification to use the resources involved or to threaten a loss that would have future negative ramifications for legislation and politics in the state. In the wake of the loss of an HLA at the ballot, even pro-life legislators might recognize the lack of public support, and would not be encouraged to push a pro-life agenda in the legislature. An HLA, in the final analysis, is a losing move for the pro-life movement.
– Clarke D. Forsythe is the president of Americans United for Life in Chicago. Denise Burke is the Vice President and Legal Director for AUL’s Legal and Policy Team.