Homicide and personhood

If personhood is legally recognized for prenatal life, will homicide laws apply, preventing abortion? No.

When a Supreme Court decision, or an unchallenged statute or lower court decision, permits the killing of a person in certain circumstances, homicide laws do not apply. For example, homicide laws do not prevent a guard from killing a prisoner during an escape. Therefore, even if a personhood amendment to a state constitution, or a statute, defined the word “person” to include every human being from the moment of conception, current homicide laws would not prevent the killing of a zygote, embryo, or fetus during an abortion.

The bottom line? In Roe v. Wade, the Supreme Court permitted abortion, while in Webster v. Reproductive Health Services, the Court affirmed that personhood language could not be used to regulate or prohibit abortion.

Consequently, the main question is whether prosecutors, attempting to set up a legal challenge to Roe and Webster, would use personhood to charge abortion providers under current homicide laws. Probably.

However, the lower courts generally adhere to precedent. Moreover, a majority of current Supreme Court justices support both Roe and Webster. The four liberal justices – Ginsburg, Breyer, Sotomayor, and Kagan – consider Roe settled precedent, while another justice – Kennedy – was part of the Planned Parenthood v. Casey decision that upheld Roe. And Justices Kennedy and Scalia were both part of Webster and concurred in the judgment.

Additionally, prosecutors would face these same legal obstacles if state legislators passed new homicide laws that expressly prohibited abortion.

Nevertheless, a number of seemingly inconsistent laws involving prenatal life have helped contribute to the misunderstandings about what the actual legal impact of personhood would be.

To begin, even without personhood, current fetal homicide and child endangerment laws can, and have, been used against women in limited circumstances; for example, when a woman ate rat poison while pregnant, allegedly intending to cause the death of her baby, and when a woman used cocaine while pregnant, allegedly causing the stillbirth of her baby.

But here the word “person” is a secondary issue, and such laws can be upheld or struck down by the courts based entirely on issues other than the word “person.” Why? Because such laws protect a state’s interest rather than a fetus’ interest, and Roe does not prevent a state from protecting its interest in fetal life, except in one circumstance: abortion.

A key question, then, is whether personhood would increase the instances of prosecution in these kinds of fetal homicide and child endangerment cases, which are fairly rare. The answer is no. In general, probable cause is required for an arrest, and a similar standard is required for a grand jury indictment or preliminary hearing; for example, evidence of eating poison or using drugs while pregnant. And personhood would not change the availability, or unavailability, of evidence. Finally, the likelihood of obtaining or sustaining a conviction is limited by a wide array of legal issues, even when there is enough evidence for an arrest.

Now, with regard to abortion, a recent development in law is having an immediate effect on Roe. Since 2010, eight states – Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, and Oklahoma – have prohibited most abortions after twenty weeks on the grounds that a fetus can feel pain at that point in gestation.

However, unlike the personhood issue, which has already been addressed by the Supreme Court, fetal pain laws have not been successfully challenged in court. This is crucial. Simply put, unless challenged and struck down, these prohibitions are the law, despite being in conflict with Roe.

Notably, like fetal homicide laws, fetal pain laws are used to protect a state’s interest in fetal life as opposed to protecting a fetus’ interest. In contrast, personhood amendments, and statutes, are designed to protect the interests of zygotes, embryos, and fetuses, which has led many to conclude that, if upheld, then (1) a prenatal person would be entitled to constitutional protection, and (2) a prenatal person’s interest in life would outweigh a woman’s liberty-based interest in abortion. The former conclusion is correct. The latter, though, is subject to constitutional interpretation.

Clearly, the Court-created right to abortion is a violation of the God-given right to life specified in the Declaration of Independence. But the Declaration has no binding legal authority. In general, the protection of rights that are not enumerated in the Constitution ultimately depends upon the discretion of the Supreme Court justices. Of course, the House and Senate, respectively, have the power to impeach and remove justices from the bench. But how many times has a justice actually been removed? (Hint: less than once.)

During the heated debates that surrounded the Constitutional Convention, the Founding Fathers spoke emphatically about the importance of morality. Now, after decades of activism by liberal justices, the moral relativity of modern liberalism has distorted the Constitution to such an extent that an invented right to abortion can trump the unalienable right to life.

Basically, for the damage to be undone, either the Supreme Court’s composition, or the current justices’ views, must change.