by Robert Muise, Thomas More Law Center
Over the past year, debate and discussion over the direction of the pro-life movement has increased profoundly. National leaders of the movement, including Catholic leaders, have eschewed—and in some cases directly opposed—efforts to pass constitutional “human life amendments” at the state level. Instead of supporting such a strategy, they largely favor the current “incremental” approach, which offers no plan or promise of ending abortion in the foreseeable future. After 35 years of abortion on demand through all nine months of pregnancy, it is time to rethink pro-life strategy and the efficacy of the national pro-life movement.
While seeking to decrease the number of abortions performed in this country is a laudable endeavor and should continue, we must never forget that ending all abortions is the ultimate goal. Protecting innocent human life is not negotiable. Accordingly, we should not corrupt our discourse by even suggesting that it is. The fundamental human right is the right to life itself. This is true of life from its earliest stage of development until natural death. Abortion, consequently, cannot be a human right—it is the very opposite.
Protecting innocent human life from its very beginning is a pro-life imperative—there are no exceptions. Critics of this approach appear to argue that regulating abortion and seeking to end abortion are “either or” propositions—this is a false dichotomy. There is no conflict between the two positions, so long as principle is not compromised in the process. Both strategies can and must coexist. However, it would be a tragic mistake to be content with a strategy that makes ending abortion secondary to other regulatory efforts, or worse yet, a strategy that avoids it altogether. Accordingly, passing a human life amendment should be the pro-life movements’ main effort.
The humanity of the unborn and the inhumanity of abortion
A state human life amendment presents not only an opportunity to challenge the essential holding of Roe v. Wade, 410 U.S. 113 (1973), it provides a historic opportunity to educate the general public regarding the harm caused by all abortions, not just late-term, partial-birth abortions, which, in comparison, are far fewer in number. Accordingly, such an amendment provides the pro-life movement with the opportunity to demonstrate the humanity of the unborn victim at the earliest moments of life and the inhumane way in which this life is destroyed by abortion. Demonstrating the humanity of the victim is a key component in social reform. Throughout the history of our nation, social reform has always been achieved through such efforts, which dramatize the injustice and prick the collective conscience of the culture. Examples of this phenomenon include the abolition of child labor and the civil rights movement. Abortion should be included in this list.
A criticism of the human life amendment approach is that the American public is not ready to accept the reality that human life begins at fertilization. If this criticism is valid, then it is a serious indictment of the national pro-life movement and calls into question its efficacy over the years. A human life amendment provides an opportunity to remedy this grave deficiency, which alone is reason enough to support such a strategy.
In the final analysis, we are in this fight to win, not to go on in perpetuity, content with an occasional “honorable mention.” To succeed in this fight, we must have leaders who are committed to winning it.
What does it mean to win the pro-life fight? John Paul II defined the objective in the Gospel of Life,
The human being is to be respected and treated as a person from the moment of conception; and therefore from that same moment his rights as a person must be recognized, among which in the first place is the inviolable right of every innocent human being to life.
Evangelium Vitae at ¶ 60. A human life amendment seeks to achieve this objective—and nothing less. Accordingly, a human life amendment must be part of our national strategy.
Challenging the essential holding of Roe v Wade
Roe v. Wade was and continues to be widely-decried by legal scholars on both sides of the issue as being without constitutional warrant. However, it cannot be gainsaid that the essential holding of Roe v. Wade remains the primary obstacle to any meaningful pro-life initiative that seeks to end abortion.
To remove this obstacle, a case must be presented to the United States Supreme Court that challenges the central premise of Roe—that the unborn is not a person within the meaning of the law. In Roe, the Court conceded that if the “personhood” of the fetus “is established, [the case for abortion], of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” Roe, 410 U.S. at 156-57. The Court reviewed the language of the United States Constitution and concluded that the word “person” did not have any prenatal application. Id. A state human life amendment seeks to establish “personhood” as a state constitutional right.
In the early years of the pro-life movement, there was national support for a federal human life amendment—a proposal that would amend the United States Constitution. Some legal scholars saw such a proposal as a legitimate means for seeking reversal of the Roe decision. Despite such efforts in the 1980s, attempts to reverse Roe by a federal constitutional amendment or statute failed. Unfortunately, some national leaders consider the prospects for doing so now or in the near future as almost nonexistent in light of current political realities.
On this point, critics of a state constitutional amendment strategy often conflate early failed attempts to pass a federal constitutional amendment with local efforts to pass a state constitutional amendment. With regard to “political realities,” the two are incomparable. The current political reality is that an amendment to a state constitution, such as in Georgia, has a very good chance of succeeding—if the national pro-life leadership would support it. In this regard, the Georgia Right to Life should be commended for continuing the fight despite the lack of national support.
In the final analysis, when the Supreme Court decided Roe v. Wade in 1973, establishing abortion as a virtually absolute right, the issue did not go away. Indeed, there is no greater social issue that tears at the soul of America today than abortion. And the reason for that is simple: abortion is intrinsically evil. No Supreme Court pronouncement nor constitutional amendment creating an abortion right in the future will ever change that fact. The same cannot be said of any number of social issues prevalent today. The closest issue is slavery, which took a civil war and a constitutional amendment to resolve.
As history teaches, William Wilberforce repented of his incremental approach, and then went about the business of winning total emancipation for the slaves in the British empire. And the words penned by Martin Luther King, Jr. in his Letter from Birmingham Jail ring true today:
“We know through painful experience that freedom is never voluntarily given by the oppressor, it must be demanded by the oppressed. Frankly, I have yet to engage in a direct-action campaign that was ‘well timed’ in view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word ‘wait’! It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’ We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.’”
Unfortunately, the longer we “wait” the more lives are lost and the more engrained abortion will become in our Nation’s social fabric. Now is the time to shift our pro-life strategy to include efforts to pass state human life amendments.
Robert J. Muise is an attorney with the Thomas More Law Center, a national, public interest law firm based in Ann Arbor, Michigan. The Law Center is committed to defending the sanctity of human life.
Re-printed with permission from Celebrating Life