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Human Exceptionalism

Life and dignity with Wesley J. Smith.

SC “Personhood” Bill Violates 1st Amendment



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Well-intentioned legislation has been filed in South Carolina to try and establish “personhood” as beginning at fertilization. I don’t prefer that approach. I think what matters is humanhood. If an organism is human, certain rights attach, regardless of “personhood”–a philosophical concept being changed in bioethical and ideological circles as requiring self awareness or other such capacities. In other words, personhood is subjective, whereas humanhood is more objective.

That point aside, the South Carolina legislation seems fatally flawed, in that it would be unconstitutional on First Amendment grounds–at least as the Establishment Clause is currently interpreted. From the text of AB 457, the “Personhood Act of South Carolina:

(A) The General Assembly acknowledges the July 4, 1776 Declaration of Independence is one of the Organic Laws of the United States of America found in the United States Code. 

B)  The General Assembly acknowledges all persons are endowed by their Creator with certain unalienable rights.

(C)    The General Assembly acknowledges personhood is God-given, as all men are created in the image of God.

(D)    The General Assembly finds the Preamble to the Constitution of the State of South Carolina contains the sovereign peoples’ acknowledgment of God as the source of constitutional liberty saying: ‘We the people of the State of South Carolina, in Convention assembled, grateful to God for our liberties, do ordain and establish this Constitution for the preservation and perpetuation of the same.’

Well, the Declaration says all “men” are created equal–which could be interpreted to mean born people. But to declare that a law is explicitly based on a religious belief, e.g., that “personhood is God-given” and that “all men are created in the image of God,” is unquestionably to turn the law into the establishment of religion, to be specific, Christian and Jewish, since the concept comes from Genesis 1:27:

So God created mankind in his own image, in the image of God he created them; male and female he created them.

This simply won’t pass constitutional muster. Surely, the sponsors can try to protect unborn life without unconstitutionally (in my view) establishing religion.  Back to the drawing board, please. 



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