CHAPTER 54 HUMAN LIFE AMENDMENT: REMEDY FOR ROE V. WADE
American Life League

The Constitution no more gives judges the right to decide for the executive, than to the executive to decide for them.

                                                                                                     Thomas Jefferson.

Anti-Life Philosophy.

If Congress is permitted to enact such a [Human Life Statute] law that redefines the Constitution, a judgment which the U.S. Supreme Court felt it could not make, the entire structure of the American system of government could easily be destroyed at the whim of the present or future Congresses.

Planned Parenthood Federation of America Annual Report, 1980.

A Human Life Amendment is the most Draconian, anti-woman measure that the anti-choice fanatics could possibly dream up. It would relegate women to the status of mere breeders and give the fetus more rights that [sic] people who are already born.

It would allow the government to prosecute women for murder for using an intra-uterine device, and would mandate investigations of miscarriages.

Such an amendment must be thwarted if women in this country ever hope to attain equality. The dangers posed to the Constitution of the United States by a Constitutional Convention are just too great to risk.[no reference, sic]

Introduction.

Those who would treat politics and morality apart will never understand the one or the other.

                                                                                           John, Viscount Morley.

The successful enactment of an effective Human Life Amendment would be the second to last battle in the long war to save the unborn (the last being a conversion of the hearts and minds of the citizens of the United States).

There are several different classes of Human Life Amendments that have been proposed by pro-life legislators of the past and present. This chapter examines these different HLAs, but first reviews the history of Congressional correction of other serious Supreme Court errors.

History of Congressional Corrections.

The passage of a Constitutional Amendment to repair a Supreme Court error is certainly nothing new. The following Amendments were proposed and enacted as a result of Supreme Court decisions;

• The Eleventh Amendment prohibited Federal involvement in interstate lawsuits brought by private individuals, in response to the Supreme Court's accepting jurisdiction in such a case (Chisolm v. Georgia, 2 U.S. 419 (1793)).

• The Fourteenth Amendment was a direct result of the Supreme Court's infamous Dred Scott v. Sanford decision (60 U.S. 393 (1857)) that found Blacks to be "nonpersons" under the Constitution.

• The Sixteenth Amendment was enacted in response to a Supreme Court decision (Pollock v. Farmer's Loan and Trust Company, 157 U.S. 429 (1895) and 158 U.S. 601 (1895)) that found an unapportioned state tax to be unconstitutional.

• The Twenty-Sixth Amendment gave 18-year-olds the right to vote after a Supreme Court ruling (Oregon v. Mitchell, 400 U.S. 112 (1970)) that Congress lacked authority to impose such an obligation upon the States.

Objectives of the Human Life Amendments.

State efforts to ferret out prohibited abortions as defined by the Government would require not only searches of bedrooms for telltale 'morning-after' pills, but also searches of women's bodies for intrauterine devices.

                                                                            Law professor Laurence Tribe.[1]

In order to be totally effective in protecting the unborn, a proposed Human Life Amendment must fulfill all of the following 11 specific objectives.

While some of these objectives may seem repetitive and redundant, each addresses a specific and unique point of law. The fulfillment of all of these 11 objectives is mandatory for complete and unassailable protection of our preborn citizens.

NECESSARY ELEMENTS OF AN EFFECTIVE HUMAN LIFE AMENDMENT

An effective Human Life Amendment must;

(1) Restore the personhood of the unborn which was revoked by the Supreme Court in its Roe v. Wade and Doe v. Bolton decisions;

(2) Provide the fundamental and paramount right to life to all persons;

(3) Insure the protection of the Constitutional status of persons to all individuals, regardless of age, function, or condition of dependency;

(4) Assure protection for the preborn from aggression at all stages of development from fertilization;

(5) Guarantee protection of the lives of the unborn from all governments, organizations, and individuals;

(6) Establish that the paramount right to life is the most fundamental Constitutional right, and superior to all other rights;

(7) Provide private recourse of action to protect the unborn where local, state or federal statutes do not apply or are not enacted;

(8) Allow for the "double effect" in cases of life-threatening pregnancies (i.e., surgeries that unintentionally kill the unborn child in the process of saving the mother's life) (the "double effect" is described in detail in Chapter 43, "Catholic Church Position on Abortion")'

(9) Guarantee the preservation of all human life, regardless of health or dependency status (thus crippling pro-euthanasia objectives, as well);

(10) Insure that every effort is expended to save the lives of both the mother and unborn child in life-threatening situations; and

(11) Provide the Federal and state governments power to enforce the HLA's articles of provision.

Types of Human Life Amendment.

Introduction.

Since 1973, various legislators have proposed more than a score of Human Life Amendments for consideration by Congress. These proposed Amendments fulfill one or more of the 11 specific objectives of the pro-life movement listed above, and are therefore considered to be of varying effectiveness in terms of actual real-world legal protection.

The six general types of Human Life Amendment are listed below, from most desirable to least desirable in terms of practical effect;

(1) Life Protective Type
(2) Paramount Type
(3) Prohibition Type
(4) Personhood Restoration Type
(5) Reversal Type
(6) Legislative Authorization Type

The following paragraphs briefly describe these types of Human Life Amendment.

(1) HLA: Life Protective Type.

History.

Various Life-Protective HLAs have been introduced for vote, including the Burke Amendment (House Joint Resolution (HJR) 121), the National Right to Life Committee Amendment (HJR 114, 98th Congress), and the Garn Amendment (SJR 4, 98th Congress), as shown below;

With respect to the right to life, the word 'person,' as used in this Article and in the Fifth and Fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.

No unborn person shall be deprived of life by any person: Provided, however, that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.

Protection Provided.

The Life Protective HLAs, modeled after the Thirteenth Amendment, provide direct and unassailable protection to the preborn.

These HLAs would disable pro-abortion attempts to define conception at implantation, which would allow the use of abortifacient pills and possibly some IUDs. This Amendment is also so solidly worded that the Supreme Court would have no basis by which to graft onto it various exceptions for abortion.

(2) HLA: Paramount Type.

History.

Senator Jesse Helms introduced a Paramount HLA in the 98th Congress as SJR 8, worded as follows; "The paramount right to life is vested in each human being from the moment of fertilization, without regard to age, health, or condition of dependency."

The critical word "paramount" logically insures that the right to life is held superior to all other Constitutional rights, and prevents the Supreme Court and other Courts from eroding this right in preference to others, as they have often done in the past by compromising the right to life in favor of the "right to privacy."

This Amendment, however, would not extend the protection of personhood to the unborn, and therefore they could not take advantage of the equal protection clause of the Fourteenth Amendment. This means that private abortion clinics could continue to operate. Also, the term "moment of fertilization" is sufficiently vague to permit the use of abortifacient morning-after pills, which, if allowed for very early abortions, would of course be unscrupulously used for much later abortions.

The Paramount HLA is not designed to prevent the individual States from enacting legislation which permits surgical procedures directed at saving the mother's life.

(3) HLA: Prohibition Type.

History.

This type of HLA directly forbids abortion, unlike some of the HLAs described later in this chapter (including the Helms, Hogan, and Buckley Amendments).

The best example of a Prohibition-type HLA is HJR Res. 394, authored by Charles Rice of the Notre Dame Law School and introduced by Congressman Roncallo; "Abortion is hereby prohibited within the United States and all territory subject to the jurisdiction thereof. As used in this article, abortion means the intentional destruction of unborn human life, which life begins at the moment of fertilization."

This Amendment would directly prohibit abortion in the same manner that the Thirteenth Amendment directly prohibited the ownership of slaves. It would prohibit all abortions, including those required to save the life of the mother, but would employ the doctrine of the "double effect:" that is, any lifesaving surgery performed on a pregnant woman that resulted in the unintentional death of her unborn baby would not be treated as or classified as an abortion. The "double effect" is described in detail in Chapter 43, "Catholic Church Position on Abortion."

(4) HLA: Personhood Restoration Type.

History.

This type of Human Life Amendment would not only invalidate Roe v. Wade, it would establish once and for all the preborn as a class of people deserving of legal protection.

Proposals for a personhood restoration HLA include the Hogan Amendment (HJR 261, January 30, 1973), the Buckley Amendment (SJR 119, May 31, 1973), and the Helms Amendment (SJR 6), which reads; "With respect to the right to life guaranteed in this Constitution, every human being, subject to the jurisdiction of the United States, or of any State, shall be deemed, from the moment of fertilization, to be a person and entitled to the right to life."

Under any of these Amendments, the Federal government and the States would be prohibited from taking the lives of the preborn without "due process of law." Moreover, under the equal protection clause of the Fourteenth Amendment, the States would also be compelled to provide effective protection for the unborn, i.e., aggressive prosecution of illegal abortionists. However, the States might be allowed to recognize "degrees of evil," thus allowing light or even no penalties for illegal abortionists. Depending upon the moods and biases of prosecutors and police, abortions could be treated as felonies, misdemeanors, or even as violations.

As background, in 1965, 49 of the 50 States and Puerto Rico classified abortion as a felony. New Jersey, the exception, classified it as a serious misdemeanor.

Under the Personhood Restoration HLA, the States would have to provide that degree of punishment for illegal abortions that results in "effective" protection of the unborn. This vague term would, of course, allow pro-abortion local and state jurisdictions to effectively allow abortionists to go unpunished, if they so desired.

(5) HLA: Reversal Type.

An example of the reversal type HLA is the Hatch-Eagleton Amendment (SJR 3), which reads simply; "A right to abortion is not secured by this Constitution."

These Amendments are intended primarily to reverse Roe v. Wade and its progeny and return control of abortion to the States. However, this type of HLA would not establish any new Constitutional rights, and if the personhood of the unborn is to be guaranteed in this country, a second Amendment would be required.

This Amendment would insure that no future Supreme Court could suddenly "discern" a right to abortion in any other portion or amendment of the Constitution. Such has been suggested by some pro-abort lawyers. As ludicrous as some of these findings have been, we should not assume that they are beyond the reach of a future Supreme Court.

For example, Rhonda Copeland of the Center for Constitutional Rights asserts that childbearing (and abortion) are ways that women "speak" with their bodies, and are therefore protected by the First Amendment (if such were true, any action at all, including rape, bombing abortion mills and self-mutilation, would be protected as "speech"). Copeland also stated that the right to abortion could be found in the Thirteenth Amendment, which prohibits involuntary servitude.

Interestingly (and tantalizingly), an abortionist could be prosecuted under the Federal Racketeering Influenced Corrupt Organizations (RICO) statutes under a reversal Amendment, much as pro-lifers are now being prosecuted.

(6) HLA: Legislative Authorization Type.

These HLAs merely return the power to legislate abortion to the States. As such, they would overturn previous Supreme Court decisions that wrested such power from the States, but would not establish the right to unborn life as a national policy. As a result, state laws could become even more permissive than have ever been allowed even under the Supreme Court rulings, a very real danger in some states. Additionally, like all of the other types of HLAs, this type of Amendment does not touch Griswold v. Connecticut.

One example of such a legislative authorization HLA is the Whitehurst Amendment, HJR 261, 94th Congress; "Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion."

Other legislative authorization HLAs that have been introduced include the Noonan Amendment (HJR 681), the Federal Rights Amendment, and the Hatch Federalism Amendment (SJR 3, 98th Congress).

The Constitutional Convention.

One method for passing a Constitutional Amendment into law is by having 38 states call for a Constitutional Convention, or Con-Con. At such a convention, any aspect of the Constitution could be addressed and amended, but the topics for discussion must be determined beforehand.

As of 1992, 19 states had enacted Con-Con resolutions. These are Alabama, Arkansas, Delaware, Idaho, Indiana, Kentucky, Louisiana, Massachusetts, Mississippi, Missouri, Nebraska, Nevada, New Jersey, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, and Utah.

Those who fear a Human Life Amendment indirectly target it by attacking the institution of the Constitutional Convention. The American Civil Liberties Union (which obviously knows better) leads the way in manufacturing scare-monger statements whose purpose is to frighten and confuse the public; "The [Constitutional] convention issue is a matter of concern to everyone. It poses a serious threat not only to the right to choose abortion but to all other civil liberties. No one knows whether a convention could be limited to one purpose, because there are not procedures or precedents. Once a convention is called, it could decide to do away with any or all of the individual rights now guaranteed by the Constitution. For this reason, the ACLU opposes all constitutional convention resolutions."[2]

When the possibility of a Human Life Amendment became a little less remote, fringe groups like the National Abortion Rights Action League and Americans United for Separation of Church and State suddenly became very concerned about "protecting the Constitution." The so-called "NARAL Project for the Constitution" asks in a flyer "No matter how worthy the cause ... is it worth posing a threat to the nation's stability or risking the loss of our Constitutional guarantees in the Bill of Rights?"[3]

The same Neoliberals who oppose the Human Life Amendment naturally oppose the Balanced Budget Amendment, and use the same arguments today against the BBA that they did against the HLA in the late 1970s, when it appeared that a Con-Con would be convened for the latter. The primary tactic used by these groups is to falsely state that a Con-Con would "Repeal the Constitution."

Absurdly, Charles Black of Yale University said that the Con-Con could only be held to amend all aspects of the Constitution. Writers for Ms. Magazine and other Leftist propaganda organs claim with straight faces that "They plan to take the Bill of Rights away from you." They trot out the tired old 'victim' group cliche and illogically state that women and minorities are special targets of a Con-Con.[4]

In reality, the Neoliberals did not need a Constitutional Convention, because they could rely on an activist Supreme Court to enact their agenda for a quarter of a century. The Supreme Court essentially handed down Amendments such as the No-Prayer Amendment of June 25, 1962, when the Supreme Court amended the Constitution to read "No prayer shall be offered in a public school;"

the Uniform Method of Electing State Legislatures Amendment of June 15, 1964; and, of course, the Abortion Amendment of January 22, 1973.


References: Human Life Amendments.

[1] Law professor Laurence Tribe, quoted by Douglas Johnson. "81 Congressmen File Brief Urging Court to Retain Roe." National Right to Life News, September 26, 1985, pages 7 and 12.

[2] "Women's Guide to Reproductive Rights." American Civil Liberties Union's Reproductive Freedom Project, 1981, page 27.

[3] Undated pamphlet entitled "Choice," issued by the Colorado affiliate of the National Abortion Rights Action League.

[4] John T. Noonan, Jr. "Calling for a Constitutional Convention." National Review, July 26, 1985, pages 25 to 28.


Further Reading: Human Life Amendments.

James Bopp, Jr. (editor). Restoring the Right to Life: The Human Life Amendment.
1984: Brigham Young University Press, Provo, Utah. 239 pages. Order through your local Right to Life chapter. The most complete available discussion of all of the various types of HLA.

Sue Robinson. The Amendment.
New York: Birch Lane Press, 1990. This book is valuable only because it is hysterical pro-abortion fright-propaganda at its very lowliest. The story is set in the year 1998, after a Human Life Amendment has passed, First Lady Mary Holt Morgan leads an "anti-choice" group called Rights for the Unborn League, which operates heavily-armed weapons teams that roam the cities destroying illegal clinics and killing abortionists, their staffs, and women who have had abortions en masse. But wait it gets worse! After setting the stage with a couple of particularly brutal murders, the 'author' uses the rest of the book with weepy anecdotes and inept, watered-down 'logic' to support anti-life slogans. They're all here, folks; pro-lifers are rich, woman-hating, Bible-thumping creeps, and pro-aborts are peaceful little lambs. Women who have had abortions have to fearfully conceal the fact, for fear of being executed (never mind that many leaders of the current pro-life movement are women who openly acknowledge their exploitation by abortion). And it just goes on and on. Read this book on an empty stomach.


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This is a chapter of the Pro-Life Activist's Encyclopedia published by American Life League.


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