The Personhood Movement: Right and Wrong

If a state amendment recognizing the personhood of the unborn child came before the U.S. Supreme Court today, it wouldn’t have a snowball’s chance of being constitutionally approved by this court. Yet this is the legal theory touted by the personhood movement that is sweeping certain parts of the pro-life movements. It is the silver bullet theory for killing Roe v. Wade.

Here is the amendment as it is now being promoted in California:

The term “person” applies to all living human organisms from the beginning of their biological development, regardless of the means by which they were procreated, method of reproduction, age, race, sex, gender, physical well-being, function, or condition of physical or mental dependency and/or disability.

According to the California Civil Rights Foundation, which is leading the personhood effort in that state, “If (the amendment) passes, the California Human Rights Amendment will amend the California Constitution and define human rights commencing at biological development (e.g. conception). A pre-born child in the womb, of any age, will have the same rights and full protection under law as adults.”

Something like this was tried in Colorado a few years ago and was trounced in that largely prolife state 73 percent to 27 percent. Similar efforts are underway in seven states with more to come. And personhood signs and banners were all over the recent March for Life.

There is something very appealing about the rhetoric of the personhood movement. As Senator Sam Brownback says, “We are either persons or property.” If the unborn child is a person, then she has certain rights, chief among them the right not to be killed. Using this language, Katy Walker of American Life League had the frequently frothing Dylan Ratigan of MSNBC somewhat tamed and even charmed.

Personhood advocates, good-hearted people, say this is a way to galvanize the pro-life movements. And they’re right. There is something exciting about entering into a fight that one could win, at least in a limited sense. Advocates say, correctly, that the personhood movement educates the public in new and gripping language and at the same time gives pro-lifers something palpable to do. But there is a train wreck coming. Standing on the tracks way out there is Roe v. Wade.

If perchance one of these amendments would pass into law in some state, it would be challenged in court and at some point the issue would be brought before the Supreme Court. On the current court, there are likely two votes to overturn Roe right now, another two who might go that way given the right set of circumstances, and another very solid bloc of five Justices who have shown no interest in overturning Roe.

Last year at a pro-life meeting there was a private debate on the personhood amendment between a lawyer from Georgia who was promoting the idea in his state and National Right to Life’s general counsel James Bopp, who opposes the idea. At the end of all the legal give and take, the argument from the personhood side boiled down to divine intervention. They are counting on God to change the heart of a single justice, Anthony Kennedy, who has given no indication that he thinks Roe ought to go.

There is a great appeal to working on something that will be “The Thing That Kills Roe.” There is a natural yearning to get this thing done and get it done now. The personhood movement also answers the frustration that naturally comes with such a long fight. Jeanne Head of National Right to Life has said that, after Roe, she assumed the fight to overturn would last no more than a few years. Ann Scheidler of the Pro-Life Action League says much the same thing.

The Chinese philosopher Sun-Tzu said the most dangerous action for an army is to overreach. To overreach is to be exposed to even greater danger than usual, and not just to lose, but also to suffer perhaps fatal consequences. Or at least to end up further back than where one started.

If a personhood amendment comes before this court, a new and terrifying decision may put the pro-life movement back a quarter century or more. At the very least it could uphold Roe for a third time. At the worst, the court could strike down years of sensible, incremental advances that have had the effect of changing the hearts and minds of millions of Americans.

As pro-life legal scholar Hadley Arkes has said, “The partial-birth abortion case has shown that the court is open for business and is likely to sustain even more restrictions.” Echoing Arkes, William Saunders of Americans United for Life compared Roe to a Christmas ham, “Each slice makes it smaller and smaller until it is no more.” This is hard to hear for those who are eager for this nightmare to end.

In World War II, the U.S. Army did not start in Berlin; it ended up there. First it had to go through D-Day, the French hedgerows, the Battle of the Bulge, and much else. We are getting there ourselves in the pro-life ranks, but we aren’t there yet. Personhood gets us no closer and, regrettably, may put us further back.



Austin Ruse is the President of the New York and Washinton, D.C.-based Catholic Family & Human Rights Institute (C-FAM), a research institute that focuses exclusively on international social policy.

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  • Andrew

    Mr. Smith goes to Roe?
    As much as we would love someone to pop into Washington and overturn Roe right now, it just isn’t feasible. For those who have seen the movie “Mr. Smith Goes to Washington”, one of the reasons it is a good movie is because it is the ULTIMATE underdog triumph; however, it is almost virtually impossible given the current state of affairs. I am of the opinion that we must strike when we see the whites of their eyes, and right now their eyes are simply closed shut…start small.

  • Willie

    Imago Dei?
    There are many who would argue that that infants and people in persistent vegetative states do do not have personhood. Although I do not agree, to ascribe personhood to a fetus would be a real moral leap at the present time. Even some Catholic theologians argue that personhood requires the cognitive ability to appreciate the Creator. Ever since Casey vs. Planned Parenthood, it would seem that personhood is anything you need it to be or not to be I agree, it’s not time to dump the ham in the trash

  • debby

    So hard to wait!
    This is a very hard word to hear, but Austin makes sense. To Stand in Truth=Stand for Life. The change of hearts which may be assisted w/the Personhood Language spoken in the public square is MORE the goal than change in law. Dont get me wrong-yes, change the law! But hearts must be won or the murder of children will persist, legally or not.
    Remember who our enemy is. He is always the antithesis of Way, Truth, Life, Mercy, Love. This battle will be won-in HIS time.
    Thanks 4 the insight & work.

  • Philippus

    Coexisting with Evil
    It’s a sad state of affairs that Catholics now advocate coexisting with evil in the public forum. And to quote Sun-Tzu to help you make your point is beyond me. One can rid evil from his immediate surrounding depending on how deeply or not the evil is affecting him or people around him. When there is an evil of magnitude proportion such as abortion, there is no way to negotiate except with public outcry by activism and prayer and through rigorous legislative means and that is PERSONHOOD NOW!!!

  • Ps 18:31. 47. 50. 51

    on the other hand
    or should that read in The Other Hand when one compares the human wisdom and political astutness of both the article and the early commentators, with the readings for today’s Mass: Sirach 47:2-13

  • Kevin J Jones

    Colorado?
    I think Mr. Ruse is wrong to say Colorado is a largely pro-life state. We were one of the first to “liberalize” abortion laws. While Colorado Springs is an Evangelical stronghold and the Archbishop of Denver has done much to strengthen Catholics, pro-lifers are outnumbered. Indeed, the leading GOP candidate for governor endorsed an early version of FOCA! He says he is pro-life now, but…

  • anonymous

    Has anyone seen the movie “Come what may?” I was wondering if it was about personhood or not.

  • William H. Phelan

    Fifty Years Ago
    Fifty years ago abortion was a crime and abortionists went to prison, if caught. Then, homosexual activity was criminal behavior. Contraception was a mortal sin. Marriage, properly entered into, was indissoluble. Now, abortion is governmental “pest control” (that is why we have had 50 million abortions), homosexuals are allowed to marry, 97% of Catholics contracept, annulments are Catholic divorce. The pope has said the future of the Church is in Africa. I always thought it was the moon.

  • Hal Barton

    abortion is murder if
    abortion procedures are good – but not when they are called a medical procedure instead of what it really is, MURDER. but if baby is not really a person it means that murder is impossible – we do not like to think we are murdering babies in their most holy sleep in their most sanctified bed: but the only way to honor the babies humanity is to loudly proclaim their humanity. How to do that? Just confess that the baby is a person and therefore a victim of premeditated murder – give that honor.

  • Dan Kennedy

    Thank you
    Well said, Austin. The belief that a personhood amendment is a magic bullet is quite prevalent. For those of us who make the points you do, we sometimes are accused of lack of faith.

  • Thomas

    Federal Supremacy
    Roe held an unborn child is not a “person” under the U.S. constitution. A state law defining “person” otherwise would not trump the federal constitution. The state law could not remove federal constituitional “protection” (or license) that Roe grants to a pregnant woman even within the state’s own borders.

  • Jim Cole

    Reading Roe
    Many people have heard the line from Roe that claimed the judiciary could not determine “when life begins.” They have not, however, heard the rest of the story. The Court said further on in Roe that it would not allow that decision to be made by anyone else, either. Defining personhood in state law will always fail to move us away from Roe, because Roe, as federal law, is always supreme over state law under the U. S. Constitution. Defining “personhood” simply fails to solve our problem.

  • Brian

    Legislative Fact Finding
    The findings underpining ROE were limited to the cases in which the constitutional challege arose and are sorely antequated. Legislative fact-finding is far more robust than judicial fact-finding and will include all of the latest medical and scientific evidence. Creating a state by state legislative “record” of indisputable current medical and scientific evidence severely weakens ROE and lays a predicate for a constitutional challenge through Federalism. State Legislatures can find facts too.

  • Joseph

    Poor wording
    What’s the difference between sex and gender? Duh…And, the phrase “…all living human organisms from the beginning of their biological development..” is open to interpretation. 50 million dead American babies and counting.

  • Jacob

    STOP GIVING COMMUNION TO ANTHONY KENNEDY!

    No one who’s unwilling to stand up for the innocent in Christ’s name deserves His communion.

  • David W. Rusch

    Enough!
    Sorry, but 37 years of killing is enough. The battle for hearts is one thing we must all pursue, but the killing goes on and on and the excuses against bold action become more and more hollow.

  • Ted K

    “Human life” is
    The concept of person or personhood is a bit messy to define because it originally stems from Christian theology to speak about God, but was later used to speak about human beings. When one uses this concept without its theological underpinnings you have a malleable and ambiguous concept whose meaning is left to the legal system to settle. I would suggest the concept of human life is better, not being as unweildy and more easily related to DNA, that is, to the scientific realm

  • mmk

    a well-meaning mistake
    The use of the phrase “biological development” scares me. For years now, the abortive contraceptive makers have been trying to define biological development as beginning at the moment of implantation- not conception. At best, this is what will happen here. Then the pro-life movement will have opened the door to all sorts of embryonic experimentation etc. since the law will have determined that a baby not yet implanted is NOT a person.

  • Mike

    Roe denied 14th Amendment equal protection to the unborn by denying their personhood. After 37 years the Supreme Court is no closer to reversing itself. It won’t happen. There are other constitutional remedies. Article III, Section 2 allows congressional regulation of the Court’s appellate jurisdiction. The closeness of elections allows pro-lifers to swing elections. They have more than sufficient numbers. That doesn’t mean voting Democrat.It means not voting GOP until they get serious.

  • Chuck

    A new Nuremberg
    Yes. The GOP is not doing enough and it has perpetuated the issue by using it as a wedge to retain voters. One thing we must start considering is a future Nuremberg style trial for all the politicians and operatives that permitted and promoted this holocaust. Either we put them on trial or we apologize to the Nazis for condemning their legitimately elected leaders to death and then doing the same ourselves to our own babies. Think about it. A new Nuremberg.

  • Pro-Life Catholic

    How Dare You!
    Roe has been upheld only twice?! Not true. It’s been re-affirmed about 25 times. You’re a lawyer; don’t the Akron and Thornburgh decisions ring a bell? You say that Colorado is a largely pro-life state. Good grief! This is the state state that voted against a partial birth abortion ban AT THE BALLOT BOX!!! Moreover, what do you expect the majority of pro-life Catholics to do when they don’t keep with the latest pro-life politics and Archbishop Chaput comes against it?! How dare you!!!

  • Austin Ruse

    There have actually bn 37 cases that have touched on abortion since Roe, hardly any of them, however, have joined the underlying issue of a constitutional right to abortion. Rather, most of them dealt with the breadth of that right. Akron, for instance, simply struck down a number of city regulations on abortion. Thornburg was about striking down similar regulations on abortion not the underlying constitutional issue, such as happened with Casey and would happen with personhood.

  • Stephen Naratil

    I Disagree
    Thank you for your post. It is a reasoned position, but flawed, I believe. Incrementalism has not worked, and will never work, if the goal is to make abortion illegal. If the goal is to limit abortion, then there is a chance. Roe v. Wade will be overturned. When? Why not now? You say 2 solid judges, I say four solid, and Kennedy is the wild card. When will we have a better opportunity? Not for a while. Check out my blog for my comments: http://www.buildingacultureoflife.wordpress.com

  • Mary De Voe

    The human being is, according to St. Thomas Aquinas: “an individual substance of a rational nature”. “We hold these truth to be self-evident that all men are CREATED equal”, not born equal. Government cannot give life, or sovereign personhood. Government cannot take life, or deny sovereign personhood. The government can only give a sovereign person citizenship, the FREEDOM to constitute the nation through his sovereign personhood, to keep the nation’s laws and pay taxes. Sovereign personhood is among the unalienable civil rights endowed by “OUR CREATOR” and the standard of Justice.
    The Supreme Court says it does not know if the unborn is a sovereign person, then “the benefit of a doubt” is given. The judges must recuse themselves if they are ignorant of any fact. This makes Roe v. Wade a miscarriage of Justice and malfeasance. The government does not give life. The government ought not take life.
    I AM, THEREFORE, I AM. The state says that I am not. I constitute the state with my sovereign personhood. If I do not constitute the sovereign state with my sovereign personhood, the state does not exist.

  • Mary De Voe

    HUMAN LIFE AND SOVEREIGN PERSONHOOD AMENDMENT

    We holds these truths to be self-evident, that all men, as individual substance of a rational nature are created equal, not born equal, by their CREATOR, that they are endowed by their Creator with certain unalienable Rights, that among these are Sovereign Personhood, Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed through their sovereign personhood.
    And further — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
    Each State retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not expressly delegated to the United States, in congress assembled.

    SOVEREIGN PERSONHOOD IN ABORTION AND ATHEISM
    Therapeutic abortion is a miscarriage that requires surgery to save the life of the mother and the child. Therapeutic abortion intends to save both the life of the mother and the child. Procured abortion on demand intends only to kill the life of the sovereign person in the womb. Justice is predicated on intent. Roe v. Wade is miscarriage of Justice and fetal homicide.

    Because atheism will rear its ugly head as soon as the mention of God as the source of man’s sovereign personhood is acknowledged, it must be said that the duplicity of the atheist is perjury in a court of law. The atheist seceded from the nation and forfeited his (her) rights when he refused his unalienable endowed rights of our Creator and the laws of nature and nature’s God in The Declaration of Independence. The first time in history that sedition against the United States of America has been rewarded in the Supreme Court.

  • enness

    What do you make of their contention that support has increased every time the amendment has come up?
    I think there’s a time for patience and a time to get fed up. I think initial failure is to be expected. Martin Luther King Jr. was arrested over twenty times; his first major protest not only got him arrested but his house bombed as well.