There is no shortage of bad ideas in the pro-life movement. Here's the most recent one: state "personhood" proposals. These proposals, drafted as either state constitutional amendments or state statutes, purport to recognize unborn children as constitutional "persons," and are intended to challenge the Supreme Court's holding in Roe v. Wade1 that the unborn child is not a "person," as that word is used in § 1 of the Fourteenth Amendment.2 Failing that, they are intended to persuade die Court to overrule Roe and return the issue of abortion to die states. Such proposals, which, by last count, are being promoted in more than one-half of the states by Personhood USA, the American Life League, and the Thomas More Law Center (Ann Arbor), are unlikely to do either, even assuming that they are ultimately enacted by state legislatures or approved by the electorate (Colorado's Initiative 48, a "personhood" measure, was defeated by a margin of almost 3 to 1 last November).
In articles previously published in the Human Life Review and First Things, I've explained in detail why, in the absence of a federal constitutional amendment, the Supreme Court will not recognize the unborn child as a "person" within the meaning of the Fourteenth Amendment; why the recognition of "personhood," altiiough desirable, is not the "cure-all" for ending abortion; and, further, why, in my opinion, we do not even have the votes on die Court to take the lesser, but critically important, step of simply overruling Roe and restoring the states' authority over abortion.3 Pursuing "personhood" litigation and other purist goals at the expense of incremental advances in abortion law and policy will lead only to more pro-life defeats and demoralize the pro-life movement. It will do little or nothing to end abortion. In law, as in politics, there is no such thing as a "no-cost" defeat. I would refer interested readers to those articles for my analysis.
Rather than going over the same ground yet again, I want to focus in this article on the language and underlying suppositions of state "personhood" proposals. These proposals, in my judgment, have been drafted with breathtaking, indeed, stunning, ignorance, or even defiance, of basic state and federal constitutional principles.
The Hierarchy of the Law
Probably the most elementary error that infects state "personhood" proposals is the failure to recognize the hierarchy of the law. Neither a state constitution nor a state statute can define words used in the federal constitution or dictate how those words shall be interpreted by state and federal courts. The starting point for the discussion here is the Supremacy Clause of the United States Constitution, which provides, in relevant part, that "This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding G4 In the hierarchy of the law, the federal Constitution is supreme and takes precedence over a conflicting state constitutional provision or state statute. As Justice Brennan stated in Reynolds v. Sims,5 "When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls."6 But, it may be asked, who decides what the federal constitution means? The judiciary.
It is basic "Civics 101" that the legislature makes the laws, the judiciary interprets them, and the executive enforces them. In the case of the federal Constitution, the law, i.e., the Constitution, was made by the Framers and adopted by the states. And its interpretation is quintessentially a matter for the judiciary. As the Supreme Court has said, "It is the responsibility of this Court ... to define the substance of constitutional guarantees."7 In rejecting an attempt by Congress to overturn a decision of the Supreme Court construing the Free Exercise of Religion Clause of the First Amendment,8 the Court stated, "The power to interpret the Constitution in a case or controversy remains in the Judiciary. …