As the state’s largest pro-life organization, we appreciate the concept of personhood: that the unborn are endowed with the same rights as the born and should be granted equal protection under the law. On the surface, a personhood amendment seems beneficial and in line with our ideology. On a deeper level, however, concerns arise about the actual outcome of such an amendment. Wisconsin Right to Life does not support a personhood amendment. Here’s why, and more background on the topic:
What is the purpose of a personhood amendment to the Wisconsin State Constitution?
Some states are pursuing a personhood amendment as a means to challenge Roe v. Wade. Such legislation would propose a legal definition of personhood under the 14th Amendment to the Federal Constitution with the purpose of undermining comments by Justice Blackmun in Roe v. Wade when he stated, “we don’t know when life begins.” By legally defining when life begins, so the theory goes, an omission in Roe can be repaired or new facts presented about which the Court was unaware in 1973.
Personhood Would Not Create New Protections for the Unborn
The personhood amendment has no enforceability or practical utility; it relies on the legislature to pass and defend laws that protect life. The legislature already has this authority. Our time is better spent creating new laws and defending existing laws that protect the unborn.
Personhood is Unlikely to Succeed in Court
Granting personhood to unborn children has been proposed to the U.S. Supreme Court in over 25 cases; the Court has not accepted this argument. There is not a single state in which personhood has been granted and upheld.
Personhood Does Not Affect Roe v. Wade
Adding a personhood amendment to our state’s constitution will not undermine or supersede the scope of Roe v. Wade. The Supreme Court found a “right to abortion,” not a lack of equal protection for the unborn under the law. If we want to attack Roe, we need to attack the so-called “right to abortion.”
Should Roe be overturned, the states default to their legislatures to regulate abortion – a responsibility they already have.
Wisconsin Already Has a Law Banning Abortion
Wisconsin has a law, § 940.04, that prohibits abortion. It is currently unenforceable because of Roe v. Wade. Should Roe be overturned, this law would immediately be reactivated, regardless of whether or not we amend our Constitution to include personhood.
Personhood is Ambiguous and Risky
A proposed personhood amendment is intended to limit the scope of the Wisconsin Supreme Court. It does not, however, limit them from finding a “right to abortion” in another provision of the Wisconsin Constitution. If personhood passed and the Court separately found a right to abortion, they would have to balance and weigh those rights against each other. The rights of the woman to have an abortion would be pitted against the personhood rights of the unborn. Personhood is not specific or clearly defined and it is likely that the Court would favor the rights of the woman.
If a state personhood amendment to the Wisconsin Constitution were enacted, the probable impact is:
- Wisconsin’s abortion ban would be considered repealed by implication, or —
- Wisconsin’s abortion ban would be declared unconstitutional and unenforceable under the State Constitution.
- Should Roe v. Wade be overturned, the Wisconsin state legislature would then have to enact a new abortion ban, a difficult task which is unnecessary since Wisconsin’s ban is already in place.
- Depending on the wording of an amendment, regulatory laws such as Wisconsin’s Right to Know Act and Parental Consent Act would be subject to attack in the courts.
A better approach is to directly challenge the woman’s right to abortion by passing an amendment that expressly states that our constitution holds no such right.