A Closer Look at Personhood Legislation

As many have no doubt heard by now, Rep. Paul Ryan was a co-sponsor of the Sanctity of Life Act in the House of Representatives. For those who haven’t been paying attention, the Sanctity of Life Act is a so-called “personhood” law that would codify into law the notion that human life begins at conception (as opposed to viability or birth) and that an embryo or fetus is a “person” under the law. I want to take a closer look at just what that Sanctity of Life Act really proposes and what it might mean if enacted into law.

First the text of the bill (and don’t worry if a lot of this reads like lawyer mumbo jumbo; you only really need to pay close attention to Section 2):

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Sanctity of Life Act of 2011’.

SEC. 2. FINDING AND DECLARATION.

(a) Finding- The Congress finds that present day scientific evidence indicates a significant likelihood that actual human life exists from conception.

(b) Declaration- Upon the basis of this finding, and in the exercise of the powers of the Congress--

(1) the Congress declares that--

(A) human life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and

(B) the term ‘person’ shall include all human life as defined in subparagraph (A); and

(2) the Congress recognizes that each State has the authority to protect lives of unborn children residing in the jurisdiction of that State.

SEC. 3. LIMITATION ON APPELLATE JURISDICTION.

(a) In General- Chapter 81 of title 28, United States Code, is amended by adding at the end the following new section:

Sec. 1260. Appellate jurisdiction; limitation

‘Notwithstanding the provisions of sections 1253, 1254, 1257, and 1258, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any statute, ordinance, rule, regulation, practice, or any part thereof, or arising out of any act interpreting, applying, enforcing, or effecting any statute, ordinance, rule, regulation, or practice, on the grounds that such statute, ordinance, rule, regulation, practice, act, or part thereof--

‘(1) protects the rights of human persons between conception and birth; or

‘(2) prohibits, limits, or regulates--

‘(A) the performance of abortions; or

‘(B) the provision of public expense of funds, facilities, personnel, or other assistance for the performance of abortions.’.

(b) Conforming Amendment- The table of sections at the beginning of chapter 81 of title 28, United States Code, is amended by adding at the end the following new item:

‘1260. Appellate jurisdiction; limitation.’.

SEC. 4. LIMITATION ON DISTRICT COURT JURISDICTION.

(a) In General- Chapter 85 of title 28, United States Code, is amended by adding at the end the following new section:

'Sec. 1370. Limitation on jurisdiction

‘Notwithstanding any other provision of law, the district courts shall not have jurisdiction of any case or question which the Supreme Court does not have jurisdiction to review under section 1260 of this title.’.

(b) Conforming Amendment- The table of sections at the beginning of chapter 85 of title 28, United States Code, is amended by adding at the end the following new item:

‘1370. Limitation on jurisdiction.’.

SEC. 5. EFFECTIVE DATE.

This Act and the amendments made by this Act shall take effect on the date of the enactment of this Act, and shall apply to any case pending on, or commenced on or after, such date of enactment.

SEC. 6. SEVERABILITY.

If any provision of this Act or the amendments made by this Act, or the application of this Act or such amendments to any person or circumstance is determined by a court to be invalid, the validity of the remainder of this Act and the amendments made by this Act and the application of such provision to other persons and circumstances shall not be affected by such determination.

Like I said above, I recognize that to the non-lawyers reading this, a lot of that may look like mumbo jumbo. And some of it is (the parts about “conforming amendments” and such). But there is one important aspect of the bill that I want to point out before I get into the real substance. Note Section 3 and Section 4. Essentially, what those sections do is to say that neither the Supreme Court nor any other Federal court has any jurisdiction to hear a case about a statute that “protects the rights of human persons between conception and birth” or prohibits, limits, or regulates abortions. What does this mean, practically speaking? It means that if this law were passed, someone could not challenge the law (or a new law restricting abortion) as being unconstitutional or depriving a woman of any rights because no Federal court would have jurisdiction to hear the case. And a Federal court couldn’t even hear a case brought to challenge the constitutionality of the law that deprived the court of jurisdiction.

This is a favorite tactic of the right; try to pass a bill limiting some people’s rights and, at the same time, try to prohibit courts from hearing any challenges to the law. As a thought experiment, let’s pretend the issue isn’t abortion at all. Instead, just imagine Congress passing a law that says that people arrested for criticizing their Congressman can be tortured and sentenced to life in prison … and courts don’t have jurisdiction to hear cases arising out of that law. Or maybe the new law says that Muslims can’t vote unless they renounce Islam … and courts can’t hear challenges to that law. Or perhaps Congress might just declare Christianity the official religion of the United States and decree that laws must be premised on the New Testament … and prohibit courts from hearing constitutional challenges. See the problem? Well, it’s no different here.

Oh, just in case you’re a conservative and have no problems with any of those examples, how about this one instead: What if Congress passed a law outlawing any guns other than single-shot muzzle loaders available in 1791 … and deprived courts of the jurisdiction to hear cases claiming that the law violated the 2nd Amendment. Feel any different now? OK, then.

We can’t allow Congress to get away with passing potentially unconstitutional laws and then preventing the courts from determining whether Congress acted within its constitutional authority in passing that law. Doing so completely breaks the separation of powers upon which our system is premised.

OK. Deep breath.

And now on to the “meat” of the bill: Section 2.

First, I want to make a relatively brief comment about Section 2(a):

The Congress finds that present day scientific evidence indicates a significant likelihood that actual human life exists from conception.

I find it interesting that House Republicans are so willing to follow science when it comes to abortion (more on this in a second) but so unwilling to even believe science on things like evolution and global warming. As to the “science” on the issue of the beginning of human life, is that really something that science can tell us with any certainty? And even if science can tell us this, does the “present day scientific evidence” really do so? I mean, what does “human life” really mean? Isn’t that something that religion and philosophy have struggled with since … well, the beginning of human civilization (if not earlier)? Are these House Republicans also willing to adopt a bill (and deprive courts from hearing cases about it) that says that scientific evidence indicates that the earth is billions of years old and that human life evolved from more primitive organisms? No, I didn’t think so. But I suspect that if you talked to scientists, you’d find a much broader consensus for those propositions than you would for the proposition that science tells us that human life exists from conception.

So now, let’s look at the real core of the bill, Section 2(b) (which I’ve reformatted for easier reading):

(1) Congress declares that (A) human life shall be deemed to exist from conception, without regard to race, sex, age, health, defect, or condition of dependency; and (B) the term ‘person’ shall include all human life as defined in subparagraph (A); and (2) the Congress recognizes that each State has the authority to protect lives of unborn children residing in the jurisdiction of that State.

What would this mean, practically speaking?

Obviously, the bill would give states (or Congress) the right to ban abortions. But I’m not even going to talk about that; after all, that’s clearly the goal of the bill. If you want abortions to be illegal, this may be a great thing. And while I’d love to convince you otherwise, this post isn’t the place for me to do so (but feel free to read any of the multitude of posts I’ve written on abortion and reproductive rights).

But the scope of this bill goes much, much further than just permitting states to ban abortions. Let me explain via some examples.

If this bill were to go into effect, and a “person” was a “human life” that exists “from conception”, then wouldn’t any abortion automatically be a murder? Think about it. The abortion would, by definition be the intentional ending of a “human life” or “person”. Isn’t that what murder statutes prohibit?* I’m not sure whether the “murderer” would be the doctor or the woman, though.

Even if a state were to pass legislation specifically permitting abortion, wouldn’t the embryo person still have some sort of equal protection or discrimination claim? Maybe a wrongful death claim against the mother or pharmacist?

But it’s worse even than that. Let’s say that a woman is taking birth control pills. How do those work? In many cases by preventing a fertilized human embryo — oops, excuse me — a “person” from being implanted in the uterine wall. Wouldn’t the act of preventing the embryo person from implanting in the uterine wall (thus causing that embryo person to be expelled from the woman’s body) also be a form of murder (or maybe just manslaughter or some “lesser” crime)? Discussion of the “morning after pill” seems pointless. In other words, not only would abortion be illegal, but so too would many (most?) forms of birth control, including preventive birth control.

And we’re not done yet.

What about in vitro fertilization. In most cases, eggs are removed from a woman, fertilized, and then some of the eggs are implanted in the woman’s uterus. So far, so good (probably…). But what happens to the embryos that are not implanted? Is it legal to freeze a embryo person with the hope of possibly thawing the embryo person for implantation later? And in the case where the family decides to forego future implantation, can the embryo person be destroyed? I’d presume not. I mean, how can you destroy a “person” without committing murder? So I suppose that in vitro fertilization might still be legal, but only so long as every single embryo (viable, or otherwise) was implanted in the woman. You couldn’t leave any out without fear of committing murder or being forced to store that embryo, essentially, forever. And just imagine the liability if your freezer fails…

Thought that probably isn’t the end of the story. Because remember, according to the bill, that embryo person has rights just like any other person, doesn’t it? I mean, the bill doesn’t make a distinction between an unborn and born person; after all, that’s the whole point. But now let’s think about that frozen embryo person. What rights does it have? Does it have a right to be implanted in its mother’s uterus? In the uterus of another woman? Does it have a right to be born (or at least to have the chance)?

When children are not being properly cared for the state (or sometimes a private third party) can become that child’s guardian ad litem with the charge of caring for that child. Usually, the state can appoint someone to act as guardian ad litem via statutory authority and there is also usually a process by which a court can appoint someone to act as a guardian ad litem for an at-risk child (or adult, for that matter). So could someone come forward and ask to be appointed the guardian ad litem for a embryo person that had been frozen following in vitro fertilization? Could the guardian ad litem, acting in the best interests of that embryo person petition a court to demand the implantation of that embryo person so that it could have the chance to be born? Um, why not? I mean, remember, according to this bill, that embryo person is a person just like you and me and things like the Equal Protection clause of the Constitution don’t say that only some people have rights. That’s the whole point.

We also need to look at other issues surrounding pregnancy, too.

And what about a embryo person that is growing away in its mother’s host’s uterus? What rights does it have? Does it have the right to a healthy diet? What if the host drinks alcohol or smokes? We know from science that a fetus exposed to alcohol or tobacco can suffer developmental problems. So shouldn’t that embryo person have the right to stop its host from drinking or smoking? More importantly, what about pre-natal care? Is that embryo person entitled to healthcare, especially if its host either can’t or won’t provide it? What do we do about a pregnant woman who simply has an unhealthy diet? Can we lock that woman up and force her to eat healthy for the benefit of that embryo person depending entirely upon her diet for its development? Can we, in the name of protecting embryos people, prohibit pregnant women (or even potentially pregnant women) from all behaviors that might jeopardize the health, well-being, or proper development of the embryo person? Perhaps pregnant women ought not to be allowed out of their bedrooms for fear of causing harm to a embryo person.

We can’t forget some of the more silly things, too. How will this law affect census counts? How about maximum occupancy in a restaurant? Does the host have to pay for the embryo person to go to a movie or fly on an airplane? Does the host get any tax credits for the extra family member(s)? What if a couple uses in vitro fertilization to get a whole bunch of “people” that they keep frozen in their refrigerator? Do they get standard dependent deductions for each of those “people” in their household? I can see that as a booming new cottage industry! Why, yes, Mr. IRS Man, our family consists of Mom and Dad and Billy and Sally and 197 embryonic persons. And how should we decide who is eligible to be an American President? Is the issue natural born citizen or natural conceived citizen? And can a woman, in the days following sex and until her next period begins, demand “child support” to help her care for the embryo person (you know, just in case…)?

Finally (and back to being serious), what happens when the life of the mother really is in jeopardy? How does a doctor choose between murdering the embryo person or letting the woman die? I guess it becomes murder vs. negligence? What do we do when continuing a pregnancy could result in the woman’s death (or even injury)? Does her mental state have any bearing on the decisions to be made? Given that we’d be talking about ending the “human life” of a “person” then probably not. Don’t ask yourself about that mentally disabled 10-year-old who was incestuously raped…

Or, consider what would happen if a state were to try to permit abortions in cases of rape or incest. Shouldn’t the embryo person still have a “right” to prevent the abortion? And wouldn’t the rapist or incestuous father be able to argue that the embryo person should not be “murdered”?

Look, I get that some people are really, really opposed to abortion. And I get that their view completely discounts the notion that those who support reproductive rights and a woman’s right to choose come to the issue in good faith and after their own deep and careful thought. But in their zeal to ban all abortions they step so far over the line as to be … well … scary. I mean, think about it. Even the voters of Mississippi voted overwhelmingly against a personhood amendment to their Constitution. If the voters in Mississippi recognize just how misguided this sort of legislation is, then, well, that should tell the rest of us something. Shouldn’t it?

But the co-sponsor of this bill is now the GOP’s candidate for Vice President. Let that sink in for a while.

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*Indiana’s murder statute (Ind. Code § 35-42-1-1) provides that “A person who: (1) knowingly or intentionally kills another human being; … or (4) knowingly or intentionally kills a fetus that has attained viability (as defined in IC 16-18-2-365); commits murder, a felony.” Interestingly, Ind. Code § 35-42-1-0.5 specifically exempts “an abortion performed in compliance with: (1) IC 16-34…”.