Responses to Common Objections
Click here for an extensive article exploring the constitutional argument for Personhood.
Several objections have been made against the proposed Human Life Amendment. These objections are addressed below. As a general response, the proposed amendment establishes a constitutional principle; it does not enact legislation.
Privacy & Reproductive Rights Issues
Objection: Because there is no “maternal” exception to the homicide laws, the adoption of the proposed amendment would subject a pregnant woman to criminal prosecution for undergoing an abortion.
Response: The proposed amendment does not criminalize any behavior. Nonetheless, if the legislature wanted to immunize a woman from criminal prosecution for participating in an abortion, then that would be the prerogative of the legislature.Objection: If a woman has a miscarriage or a spontaneous abortion, she will be investigated to determine whether it was spontaneous or intentional. She could be subject to criminal prosecution.
Response: Under the Human Life Amendment, this would be no more true than it was under pre-1973 abortion laws. The common sense of the medical and legal professions can be relied on to prevent abuse here. This objection, incidentally, raises an interesting question with respect to child abuse and infanticide. If a child accidentally falls and dies, it is possible that the question might arise as to whether the death was due to child abuse. Yet the possibility of such questions being raised does not mean that we should abolish child abuse and homicide laws.
Objection: The Human Life Amendment would bring invasions of privacy. The government would require monthly pregnancy tests for all women; all pregnancies would have to be registered; the state could require the mother to give up smoking, drinking and so on.
Response: These objections ignore the fact that we have in our Constitution a Fourth Amendment that prohibits “unreasonable searches and seizures.” The Human Life Amendment would not abolish the right of privacy. All it would do is restore to the unborn child the protection of the traditional principle that lesser rights such as the right of privacy do not outweigh the right to life. Secondly, if these and other conjectures of the pro-abortionists were realistic, why were no such excesses evident under the pre-1973 abortion laws? The answer is that the good sense of legislatures, courts and the people can be counted on now as before to prevent abuse.Objection: The Human Life Amendment would outlaw contraception.
Response: This is absolutely false. Abortion is the taking of life while genuine contraception is the prevention of life. The Human Life Amendment would not restrict contraception in any way. The Human Life Amendment does no more than guarantee the rights of personhood once life has begun.Objection: The proposed amendment would create, unintentionally, both a life of the mother exception and a serious physical health exception, as well, (arguing that the amendment would permit an exception for the use of “deadly force” and the right of “self-defense”).
Response: This strikes us as an odd objection. First of all, the amendment does not enact legislation; therefore, it does not purport to make exceptions to any legislation. Nonetheless, recognizing the “personhood” of the unborn does not mean that the law now neglects the “personhood” of the mother. One would expect that any legislation that followed the proposed amendment would take into account the fact that a pregnancy involves two persons.Consider, as a first example, the unintended consequence of the removal of a pregnant woman’s cancerous uterus to save her life. Such a procedure would likely cause the death of her fetus. (It should be noted that the law does not treat this as an abortion in the first instance.) This, however, should not trigger any criminal homicide laws because the principle of the “double effect” would apply. The use of “deadly force” and the right of “self-defense” would be inapplicable in this context because there is no aggressor.
As another example, consider a situation where a gynecologist is delivering a child and is confronted with a circumstance in which the mother’s life may now be in jeopardy as a result of the delivery. The gynecologist is required to take steps that comply with the applicable standard of care to save the mother from the life-threatening condition and to do what is medically reasonable to save the child that is in the birth process. There is nothing extraordinary about this.
Objection: How can the duty to provide bodily sustenance to another be confined to pregnant women? Under the Human Life Amendment, why can’t the state require everyone, male and female, to provide a needed organ or other bodily material to save another person?
Response: The Fourteenth Amendment is the guide here, since the Human Life Amendment would merely correct the Supreme Court’s erroneous interpretation which excluded the unborn child from the protection of the Fourteenth Amendment. Under the Fourteenth Amendment, the state cannot require people in general to donate an organ even to save another’s life. The law here is protective. It sets a minimal standard to prevent invasion of rights. Only in very limited situations does the law impose affirmative duties. The pregnant woman has the duty merely to provide sustenance and protection to the child she is carrying. This is merely a recognition of her unique relation to the child she is carrying. After birth the parental duty of sustenance and protection continues, though in a different form. But it is fantasy to suggest that the Human Life Amendment would lead to such things as mandatory organ transplants.Objection: “The proposed amendment would outlaw abortion and would, therefore, be successfully challenged in federal court without the chance of review by the Supreme Court.”
Response: The amendment would be a direct challenge to the fundamental holding in Roe v. Wade, therefore, it is likely that it will be challenged in federal court on that basis. However, there is no basis for claiming with absolute certainty that the Supreme Court would not review the case. There is no meaningful way to restrict abortion without providing the Court with a case that directly challenges Roe. A challenge to the proposed amendment would provide the Court with that case. Indeed, in our view this is not a valid criticism — it is the fundamental reason for passing the proposed amendment in the first instance.
Objection: If the amendment is challenged under federal law then it would have no operative effect in limiting state abortion rights either.
Response: Presently, there is no state limitation on abortions rights, nor will there ever be without first challenging Roe v. Wade.Objection: The amendment would repeal by implication all of Georgia’s regulatory legislation on abortion.
Response: The “repeal by implication” argument rears its head every time a legal proposal is made that could meaningfully restrict abortion. Is the Georgia legislature concerned that if this amendment passes and is then challenged the legislature will no longer be able to meaningfully regulate abortion? The reality is, until Roe is challenged, the Georgia legislature will never be able to meaningfully regulate abortion — that is the point of the amendment. Moreover, the constitutional amendment does not enact any legislation. Nonetheless, even if certain legislation is considered repealed by the proposed amendment—and the amendment is then successfully challenged, the Georgia legislature could simply reenact the legislation. Critics of the proposal make it seem as if “back alley abortions” will be occurring overnight throughout the State if the amendment is challenged. That will not happen nor would the Georgia legislature allow it to happen.Objection: There is tension in the language of the amendment between the terminology referring to “unborn offspring” and “every state of biological development, including fertilization,” and you may not want to address in vitro fertilization through a constitutional amendment.
Response: Constitutional amendments are often drafted in general terms because they are designed to state general principles of law. And while we are not committed to any particular language and would welcome suggestions that achieve the ultimate purpose of the amendment, we do not see the conflict or ambiguities in the chosen language that is highlighted by this objection. The plain language is quite clear: human life begins at fertilization and is protected from that moment (i.e., “personhood” for purposes of the law attaches at fertilization).Regarding the question of in vitro fertilization, the proposed amendment does not explicitly address the details of this issue because, once again, it states a general principle of law. Nonetheless, because of Roe and its progeny the present presumption in the law is to destroy life—this amendment will arguably shift this presumption. The common practice with in vitro fertilization is to fertilize several eggs, let them mature for a time, select the best one for use and discard the others. The proposed amendment would, arguably, ensure that we no longer have “throw-away” human beings. We see this as a good thing.
Objection: The proposed amendment may have consequences for “end-of-life” issues.
Response: A “born” person is currently afforded all of the protections under the law, as even Roe acknowledges. Nonetheless, an unfortunate consequence of the abortion mentality has been a decline in the respect for all human life, as evidenced by the cases involving in vitro fertilization. If a consequence of this proposed amendment is to shift the presumption in favor of respect for all humans at all stages of life, then so be it. Human life has intrinsic value that cannot be measured in qualitative or utilitarian terms. And while the amendment does not specifically address “end-of-life” issues, any consequences it might have on those issues can only be viewed as positive.Objection: If the right to life is guaranteed by the Human Life Amendment “irrespective of age, race, sex, health, function, or condition of dependency,” would not the state then be required to provide the basic necessities of life for people of all ages?
Response: No. The experience under the Fourteenth Amendment is the guide here. The Human Life Amendment, like the Fourteenth, is a protective amendment. It would require the states to protect life. But the fact that the life of a teenager or an adult is protected by the state does not mean that he has a right to a state subsidy. The Human Life Amendment would make no change in this regard.Objection: Under the Human Life Amendment, wouldn’t the unborn child have to be counted in the census, be considered a dependent for tax purposes, etc.?
Response: No. The Human Life Amendment would require only that the unborn child be treated as a person with respect to his right to life. It was with respect to that right to life that the Supreme Court denied his personhood. Inclusion in the census, etc., would not be required under the Human Life Amendment because those issues do not involve the deprivation of his right to life.Objection: Isn’t the Human Life Amendment an effort to enact into law a sectarian Catholic doctrine?
Response: No. The Human Life Amendment coincides with Catholic teaching, but so do the laws forbidding bank robbery. In neither case can such a law be condemned as a sectarian intrusion on public policy. The Human Life Amendment is justified on grounds essential to the maintenance of any civilized society.
