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Saturday, March 01, 2014

Should the government be required to recognize and protect life?

I'm writing to you from beautiful Bismarck, North Dakota, where I spent the day speaking with folks about SCR 4009, commonly known as the Personhood Amendment.  It will appear on the ballot this November, and if it passes will become part of the North Dakota Constitution.  Here's the language, which is similar to failed amendments in Mississippi and Colorado:

"The inalienable right to life of every human being at any stage of development must be recognized and protected."

This is, of course, an anti-abortion measure that, because of the Supremacy Clause, will have no direct legal effect on abortion, but that could prohibit IVF treatments, DNR orders, living wills, the right of pregnant women to refuse certain prenatal prescriptions and make decisions regarding childbirth, and the right of all of us to make many medical decisions.  It also suggests that North Dakota would now have a positive duty to "protect" life, as opposed to the more typical negative requirement that it generally not interfere with people's lives.

Having become somewhat of an expert on this amendment, I'm struck by a few things.  First, this amendment turns constitutional law on its head, imposing on North Dakota a German-style positive duty to undertake a panoply of measures (state-provided housing and food, anyone?).  Second, it was approved by our legislative assembly without regard to these potentially wide-ranging consequences.  Third, and maybe most interestingly, it raises a more theoretical question: what role should state or federal governments play in "recognizing" and "protecting" life?  Should states have a positive duty to recognize and protect life, or would that turn them into unworkable and bankrupt socialist utopias?  What, indeed, is "life" for purposes of protecting it?  At this level, the Personhood Amendment ceases to be a political issue and becomes one of fundamentally restructuring social and governmental systems.


Posted by Steven R. Morrison on March 1, 2014 at 10:13 PM | Permalink


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I agree with the last comment, specifically the last part.

The question is how broad "recognized and protected" is defined. Since the positive duty potential of a literal definition is so broad, as suggested, there must be some lines drawn here.

For instance, there is an "inalienable" right to life for adults, let's say, if we follow the Declaration of Independence, but it is weighed with liberty interests in the case of refusal of care. Justice Stevens noted this in his Cruzan dissent. So, the language might work, if it is applied the right way.

The "personhood" issue as the last comment noted also is quite important when pregnancy is involved. And, given federal constitutional rights, the proper way to apply the amendment is that much more complicated.

Posted by: Jow | Mar 3, 2014 5:03:51 PM

Fascinating post. I've been involved with arguing against these personhood bills as well as fetal pain and other new attempts to limit abortion for the last few years, so take my thoughts with a grain of salt.
First, as I lamented on Prawfs a couple of years ago http://prawfsblawg.blogs.com/prawfsblawg/2011/11/life-humanity-and-personhooda-source-of-some-confusion.html the bill itself (but I think the question you asked as well though I am sure you were just tracking its language) unhelpfully confuses personhood and life, unless we are going to define "right to life" = "personhood." Second, I think there is a big difference between a command to recognize and a command to protect X in this context. Recognizing X as a person vs. non-person is what the state cannot avoid doing in every determination of whether a fetus or embryo or sperm is a person for a particular legal category or law. And I frame it that way because one need not have a uniform response. One could, for example, treat fetuses ("en ventre sa mere" as some of the trust cases put it) as persons for the purpose of inheritance but not child abuse, or persons for the purpose of attack by third parties but not for behavior of the mother. So I think recognizing or refusing to recognize fetal or embryonic personhood is inevitable. Protecting is another matter.

Posted by: I. Glenn Cohen | Mar 2, 2014 4:18:57 PM

The intersection of broad government power (couched in the language of rights protection) with a mandate to conscript women's bodies to pregnancy is horrifying. Which is an obvious point, but abortion is the thin edge of the wedge when it comes to surrendering control over individuals to the government. I would imagine that there are quite a few libertarians in North Dakota--you wonder if they don't see the broader implications of this approach because they are thinking only about abortion?

Posted by: Susannah Pollvogt | Mar 2, 2014 12:24:38 PM


Thanks for your comment. It absolutely could overrule DeShaney, requiring officers to arrest and prosecutors to prosecute where they would normally--and wisely--use their discretion not to do so. A colleague suggested that the Personhood Amendment could even require the legislature to impose a complete ban on smoking--even in private homes. And the countries of India, Indonesia, and Nigeria have a positive constitutional right to life. In those countries, the right to life has been interpreted to impose a governmental duty to a clean environment and water, and workplaces without sexual harassment. While these individual things are certainly good, the problem with the Personhood Amendment is that it could be read so expansively that it would break the bank, fundamentally restructure society and government, and leave all of us--liberals, conservatives, and definitely libertarians--without the individual liberty that we value.

Posted by: Steven R. Morrison | Mar 2, 2014 9:35:21 AM

But go broader. Wouldn't this also overrule DeShaney at the state level? Wouldn't it mean a right to competent police protection or a right to be free from bullying, sexual assault, and harassment in public school?

Mike Paulsen (St. Thomas) did a workshop at FIU last year on an abortion-related subject. DeShaney came-up at length in the Q&A and clearly that case is a hurdle to many arguments in favor of restricting reproductive freedom. But many people on the other side like the idea of recognizing that, in Justice Brennan's words, "inaction can be every bit as abusive of power as action."

Posted by: Howard Wasserman | Mar 2, 2014 8:43:55 AM

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