Monthly Archives: May 2012

When do Alabamians become rightful persons? The Personhood Initiative

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama has recently joined the ranks of states to consider a Personhood bill. The Personhood Initiative, a group devoted to defining personhood as beginning at “the moment of initial formation,” asserts that “abortion has an Achilles heel, and that is where we must direct our attack.”[1] The group believes that this Achilles heel exists in the Roe v. Wade decision, and cites dicta from the majority opinion, penned by Justice Blackmun, which states that “if [the] suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed by the 14th Amendment.”[2] The Court in Roe v. Wade went on to note that “no case could be cited [holding] that a fetus is a person within the meaning of the Fourteenth Amendment.”[3]

The Alabama Senate is currently considering an attempt at exploiting this loophole in the form of SB5, which proposes a statutory change to the Alabama Code to define the term ‘persons’ as including “any human being from the moment of fertilization and implantation into the womb.”[4] Additionally, in the House of Representatives, John Merrill has sponsored HB 405 and 409, a Personhood Statute and Amendment, respectively.  Representative Merrill intends “this bill [to] clearly affirm that, under law, an individual becomes a person upon fertilization.”[5]

Interestingly, the language of SB5 represents a compromise intended to avoid some of the problems raised by recent Mississippi legislation, which failed to gain majority support last year, but may also muddy the waters concerning when a fetus becomes a person. As critics have pointed out, the moment of fertilization and the moment of implantation are not the same moment. To be clearer, as medically defined, “implantation refers to the attachment of the fertilized egg to the uterine lining, which occurs approximately 6 or 7 days after conception (fertilization).”[6]

While the Alabama legislature may be attempting to exploit loopholes rather than challenging the Supreme Court head on, the Alabama Supreme Court feels no such hesitation in denouncing Roe v. Wade as obsolete. In a recent decision authored by Justice Parker, the court wrote that “[m]edical advances since Roe have conclusively demonstrated that an unborn child is a unique human being at every stage of development . . . the decisions of this Court, and the statutes and judicial decisions from other states make abundantly clear that the law is no longer, in Justice Blackmun’s words, ‘reluctant . . . to accord legal rights to the unborn.’ For these reasons, Roe’s viability rule is neither controlling nor persuasive here and should be rejected by other states until the day it is overruled by the United States Supreme Court.” [7]

In that same opinion, and in no uncertain terms, the court affirmed language from a 1973 decision, stating, “from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother.” [8]

A look at the initiative introduced in Mississippi last year reveals that it failed in part due to a number of concerns raised by citizens which lawmakers ultimately failed to address to voters’ satisfaction. For one, supporters of the Mississippi bill made clear that the purpose of the legislation was explicitly to provoke a lawsuit which would lead the Supreme Court to overturn the Roe v. Wade decision.[9] Proponents wasted no time beating around the bush or attempting to find legal loopholes. Such a brazen approach may have concerned fiscally conscious voters aware that defending unconstitutional legislation is costly to the state and its taxpayers.

Many voters also worried about the vagueness of the proposed amendment and the possible consequences. Governor Haley Barbour, traditionally an opponent of abortion, voted for the amendment, but expressed concerns. He worried about “the ambiguity and about the actual consequences—whether there [were] unforeseen, unintended consequences.”[10]

Indeed, the language of the proposed amendment was sweeping. It would have defined a person “to include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.” This language reached a number of issues in addition to abortion, including the use of the morning after pill and intrauterine devices to prevent pregnancy. Sterile parents also worried that the amendment would cause physicians to cease performing in vitro fertilization due to fears of criminal prosecution.

Ben DuPré, an attorney at Foundation for Moral Law, attempts to address some of these same concerns regarding the proposed Alabama legislation. With regard to in vitro fertilization, DuPré says that “IVF would absolutely still be legal; the only change is that it would be illegal to purposely kill embryo children created via IVF-a practice to which many fertility clinics already adhere, and nearly every mom undergoing IVF would agree with. Embryos formed but not implanted by IVF may be adopted as ‘snowflake children’ by other parents, but they may not be destroyed.”[11] Likewise, DuPré argues that recognizing personhood will not affect contraceptives because true “contraception” only prevents fertilization.

Accepting these assumptions as true, citizens are still left to wonder about the possible effects of the vague wording of SB5. When, exactly, does personhood attach? Is it at day one, at the very moment of conception? Or is it at day six or seven, at the moment of implantation? If these questions go unanswered, Alabama’s Personhood bill supporters may follow in the footsteps of those in Mississippi, waving goodbye to well-intentioned-but-rejected legislation.

Assuming however, that assurances such as those offered by DuPré assuage the fears of Alabama voters and the state successfully passes some version of Personhood legislation, what’s the next step legally? As no other state has yet passed substantially similar legislation, the law will almost certainly invite constitutional challenge. The question then is, what does Roe v. Wade dictate? There are two plausible lines of thought. Either Roe v. Wade stands for the proposition that states may only protect life that is at or past the stage of viability or, as proponents of the Alabama legislation suggest, Roe v. Wade left open to the states the ability to define personhood as the representatives of each state’s citizens (in the case of a bill), or the majority of a state’s citizens themselves (in the case of a state constitutional amendment), see fit. Even if Alabama doesn’t win the race to the courthouse steps, some other state is sure to get the question before the Supreme Court in the near future.

An analysis of the Court’s plurality decision in Planned Parenthood v. Casey [12] may also shed some light on the plausibility of Alabama’s proposed ‘loophole’ exploitation. The plurality opinion  in Casey overturned the strict trimester formula put forth in Roe v. Wade in favor of a balancing test which weighs a woman’s interest in obtaining an abortion against the State’s interest in protecting a fetus. Based on continuing advances in medical technology, by the time Casey was decided, a fetus could be considered viable at 22 or 23 weeks, as opposed to the 28 weeks common at the time of the Roe decision. The plurality clung to viability as the appropriate point at which the state’s interest in the fetus outweighs a woman’s rights such that abortion can be banned entirely, except in cases where the life or health of the mother is at issue.

The plurality did however alter the standard of scrutiny for abortion regulations. Under Roe v. Wade the standard was heightened scrutiny. The Casey plurality replaced this with a lesser “undue burden” standard. Undue burden was defined as having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Although the plurality staunchly affirmed the central holding of Roe v. Wade, there may be, as supporters of the Alabama Personhood legislation contend, some wiggle room. The Court indicated in Roe v. Wade that if a fetus were legally classified as a living being, the Fourteenth Amendment would protect that life, even in the face of a mother’s conflicting right to privacy grounded in the Due Process Clause. Although the Court has framed that right to privacy in strong language, i.e., “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child,”[13] it must give way before a squarely conflicting right to life.

Right or wrong, the Personhood movement is a rising tide. In California, Florida, Georgia, Iowa, Montana, Nevada, Oklahoma, Oregon, and Texas, advocates are in various stages of attempts to get measures on the agenda for the 2012 legislative sessions. Indeed, the North Dakota House passed “The Defense of Human Life Act” last year, which defined a human being as “an individual member of the species homo sapiens at every stage of development.”[14] The Ohio House took a slightly different tack, passing Heartbeat legislation, which would ban abortion once a fetal heartbeat can be detected, which can be as early as six weeks into the developmental process. As for Alabama, this state has proven time and again that it lives up to its motto: “audemus jura nostra defendere,” translated, “we dare defend our rights,” and often in the face of conflicting Supreme Court precedent. The question of the day is, when do Alabamians become rightful persons?

[2] Roe v. Wade, 410 U.S. 113, 156-157 (1973).

[3] Id.

[7] Hamilton v. Scott, 2012 WL 517459 (Ala. 2012).

[8] Wolfe v. Isabell, 291 Ala. 327, 330-31 (1973).

[12] 505 U.S. 833 (1992).

[13] Eisenstadt v. Baird, 405 U.S. 438 (1972).

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