Legal Considerations

National Prolife Strategy Debate

Nationally renown prolife attorneys debate the merits of the Georgia Human Life Amendment and it's far reaching implications for the most effective strategy to advance the prolife cause. Topics include Incrementalism vs. Absolutism, Principal vs. Pragmatism.  The following articles should be read sequentially.

1. Introduction to the Georgia Human Life Amendment, Mr. Robert Muise, Thomas More Law Center
2. Memorandum regarding Prolife Strategy Issues, Mr. James Bopp, Jr. & Mr. Richard E. Coleson, BOPP, COLESON & BOSTROM
3. Response to Bopp & Coleson memo, "Memorandum regarding Prolife Starategy Issues", Mr. Robert Muise, Thomas More Law Center

Other Resources

Personhood debate blog

Click here for an exchange between Nathan Schlueter and strict constructionist Judge Bork on personhood and the 14th Amendment. Click here for the continuation of that debate. (Scroll down 2/3 to get there.)

Click here for an extensive article exploring the constitutional argument for personhood.

 

Introduction to the Georgia Human Life Amendment
Mr. Robert Muise, Thomas More Law Center

In response to your request for suggested language for a human life amendment to the Georgia Constitution, the Thomas More Law Center proposed the following:

1. The rights of every person shall be recognized, among which in the first place is the inviolable right of every innocent human being to life. The right to life is the paramount and most fundamental right of a person.

2. With respect to the fundamental and inalienable rights of all persons guaranteed in this Constitution, the word “person” applies to all human beings, irrespective of age, health, function, or condition of dependency, including their unborn offspring at every state of their biological development, including fertilization.¹

This proposal achieves two fundamental purposes that are essential to the pro-life movement. First, it establishes and affirms, without question, that Georgia is a “pro-life” state that protects all human life from the moment of fertilization as a matter of constitutional law. And second, it provides a direct challenge to the central holding of Roe v. Wade, 410 U.S. 113 (1973).

It is important to bear in mind that the proposal establishes a constitutional principle; it does not enact criminal or civil legislation. And it establishes a constitutional principle that provides a direct challenge to the fundamental holding of Roe v. Wade. Without a direct challenge to Roe, any proposal to protect innocent human life from abortion is utterly meaningless.

For over thirty years, leaders in the pro-life movement have shied away from a direct challenge to Roe and have opted for an “incremental approach”. After these thirty-plus years, we still have Roe and abortion-on-demand through all nine months of pregnancy. The proposed constitutional amendment seeks to change that. Consequently, this proposal is not for the faint of heart. It is for those who are committed to changing the status quo and who have the will to see it through. Without question, the proposed amendment will generate controversy and sharp criticism. And if it is enacted, we expect that it will be challenged in federal court.

Contrary to the view of some critics, no one can say with absolute certainty that the United States Supreme Court would NOT reverse Roe without a case to do so. Thus, a challenge to the amendment will provide the vehicle to challenge Roe.

In the final analysis, if the intent of the Georgia legislature is to simply pass yet another abortion law or constitutional amendment that does nothing to challenge Roe, then we suggest that you consider other options and proposals. If the Georgia legislature wants to ban abortion and has the fortitude to take the fight to the Supreme Court, then it must act boldly and directly challenge the fundamental flaw of the Roe decision. This proposal does that, as demonstrated further below.

Roe v. Wade and Doe v. Bolton
When the Supreme Court decided Roe v. Wade in 1973, striking down the Texas criminal abortion laws, the Court effectively rendered all states laws banning abortion unenforceable, including the laws of Georgia. See Roe v. Wade, 410 U.S. 113 (1973).

In Roe, the Court appeared to acknowledge the State’s interest in protecting fetal life after viability, noting that a State “may go so far as proscribing abortion during that period, except when it is necessary to preserve the life or health of the mother.” Id. at 163-64. However, this “health exception,” as later construed by the Court in Doe v. Bolton, 410 U.S. 179 (1973), essentially “swallows the rule” that would allow a State to proscribe abortion in any meaningful way, and it effectively permits abortion-on-demand through all nine months of pregnancy. See, e.g. Stenberg v. Carhart, 530 U.S. 914, 938 (2000) (striking down Nebraska’s ban on partial birth abortion because, inter alia, it failed to contain an adequate “health exception”).

As noted, the broad “health exception” that dooms all restrictions on abortion, was formulated by the Supreme Court in the case of Doe v. Bolton, which was decided on the same day as Roe. Doe was a challenge to the validity of the criminal abortion statutes of Georgia. Having just decided Roe, the Supreme Court naturally struck down the relevant Georgia statutes regulating abortion. In doing so, the Court interpreted the meaning of “health” for purposes of its abortion jurisprudence as follows: “[M]edical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient. All these factors may relate to health.” Doe, 410 U.S. at 192. Thus, the term “health” in the abortion context is without practical limits. Any abortion ban that fails to contain such an exception is held unconstitutional. And any abortion ban that does contain such a “health exception” is no ban at all.

Challenge to Roe v. Wade
Roe v. Wade is the primary obstacle standing in the way of any meaningful restriction on abortion. To remove this obstacle, a case must b presented to the 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.² Nonetheless, the Court concluded, “We need not resolve the difficult question of when life begins. When those trained in …medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Id. at 159.

The proposed constitutional amendment would provide the opportunity for the case to be made that human life begins at conception. In fact, detailed and compelling evidence exists which places beyond any doubt the conclusion that human life begins at conception.³ Such evidence would be particularly meaningful and relevant in this case because it goes to the heart of the question that will be presented to the Court by a challenge to the proposed amendment.

Additionally, the proposed constitutional amendment explicitly affirms, as a matter of state law, that “personhood” attaches at the moment of fertilization. It is a well-established principle of law that States possess the right to adopt their own constitutions with rights more expansive than those conferred by the federal constitution. See Prunyard Shopping Ctr. V Robins, 447 U.S. 74, 81 (1980) ( “affirming “the authority of the State to exercise its police power [and] its sovereign right to adopt in its own Constitution individual liberties more expansive that those conferred by the Federal Constitution”). And the right to life is the most basic and fundamental right, since death forecloses “the right to have rights.” See Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring).

In comparison with the right to life, a close reading of the Supreme Court’s abortion jurisprudence supports the argument that the abortion right, while significant, is still something less than a fundamental right-and it is certainly not an absolute right. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992) (abandoning the trimester framework of Roe and creating an “undue burden” test, which is arguably something less than the “compelling interest” test that is typically applied in cases involving fundamental rights.
In the final analysis so long as Roe remains the law of the land, there is no meaningful way for lawmakers to protect innocent human life from abortion.

Conclusion
The intended purpose of the proposed human life amendment is to challenge Roe v. Wade and not to provide another “incremental” abortion regulation. If the Georgia legislature does not want to be the one to take up the challenge of pressing for a change in the current state of the law and is content on waiting another thirty-plus years for someone else to do it, then it should consider an alternative. If the Georgia legislature, however, is not content with the status quo and is willing to be the “man in the arena,” as Teddy Roosevelt aptly described,⁴ then we are committed to helping you pro bono with this legal battle to restore a culture of life by reversing Roe v. Wade.

Sincerely,

THOMAS MORE LAW CENTER

.

Robert J. Muise
Trial Counsel

Footnotes
1: There is some debate whether the term “fertilization” should be used in place of “conception.” For purposes of this memorandum, however, the terms will be used interchangeably. Moreover, although the Georgia legislative service may make revisions to the proposed amendment, this response will focus on the proposed language, which is the subject of the objections.

2: See, e.g., Roe, 410 U.S. at 156-57 (noting that “Section 1 of the Fourteenth Amendment contains three references to ‘person’. The first, in defining ‘citizens,’ speaks of ‘persons born or naturalized in the United States.’’’).

3: After eight days of hearing consisting of 57 witnesses, including world-renowned geneticists, biologists, and practicing physicians, the Senate Subcommittee on Separation of Powers concluded in a report published in 1981 the following: “The testimony of these witnesses and the voluminous submissions received by the Subcommittee points to a clear conclusion: the life of a human being begins at conception.” U.S. Senate Subcommittee on Separation of Powers, Report on The Human Life Bill- S.158 (Dec. 1981).

4: In a speech given in Paris, France in 1910, President Roosevelt famously stated, "It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiently; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."