Four Drawbacks of a No-Right-to-Abortion State Constitutional Amendment

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Several states want to neutralize “fundamental rights” protection of abortion by their own courts with amendments to their constitutions saying their constitutions provide “no right to abortion”. Tennessee enacted its Amendment in 2014. The challenge died in 2018. West Virginia and Alabama added similar amendments to their state constitutions on November 7, 2018. Iowa is trying to pass SJR21. Kansas lawmakers vowed to pass their Amendment after their court made abortion a “fundamental right” April 26.

What could possibly go wrong? Here are four points for prolifers to consider:

  • The cost/benefits of removing the state court obstacle to saving lives should count the fact that the virtually identical (according to Justice Thomas) federal obstacle will remain;
  • The risk of being overturned;
  • The risk of undermining the 14th Amendment if they are not overturned (it gives federal courts power to define and protect rights trampled by states);
  • The risk of distraction from simpler, more effective ways to neutralize the federal obstacle.

The Virtually Identical Federal Obstacle

In 1992 Casey ruled that state laws can’t be an “undue burden” (a.k.a. a “substantial obstacle”) to abortion. In 2016, SCOTUS upgraded that phrase so that

“...even if a law imposes no ‘substantial obstacle’ to women’s access to abortions, the law now must have more than a ‘reasonabl[e] relat[ion] to . . . a legitimate state interest.’” - Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016), Clarence Thomas dissent

“A reasonable relation to a legitimate state interest” is the court test for ordinary rights that are not fundamental rights. More than ordinary rights are “fundamental rights”. So Justice Thomas concludes that the undue burden test has morphed into “something much more akin to strict scrutiny”, which is the test for a fundamental right.

...These precepts...transform the undue-burden test to something much more akin to strict scrutiny.” Hellerstedt, 2016, Thomas

This mitigates the dramatic claims made about how much a “no right to abortion” amendment will accomplish. Such as when the Iowa court made abortion a “fundamental right” last year, and Justice Mansfield, dissenting, warned that “The majority’s requirement of ‘strict scrutiny’ and ‘narrow tailoring’—combined with its rejection of Casey’s undue burden standard—would make any abortion restriction very difficult to sustain.” That is a pretty dramatic claim, which Chuck Hurley, chief counsel of Family Leader quoted and then summarized, “Virtually all abortion restrictions can now be declared ‘unconstitutional.’ ”

They may indeed, but not just because of state shackles, while federal shackles remain.

Can a “no right to abortion” amendment be overturned?

When Tennessee passed its “no right to abortion” amendment to the Constitution in 2014, there was no court challenge to the legislature’s authority to overrule court determinations of fundamental rights. The only court challenge, which Tennessee won, was “only marginally related to the public policy controversy, focusing on...whether the votes were counted incorrectly....”

If there were any possible legal objection to that kind of legislative authority, wouldn’t abortionists have raised it? Maybe not. The mere passage of such an amendment might not generate a court case. As Webster explained in 1989, until a state’s position on abortion includes penalties that restrict abortion, courts won’t rule on empty words. (O’Connor concurrence: “Nothing in the record before us or the opinions below indicates that [this personhood declaration] will affect a woman's decision to have an abortion. ...When the constitutional invalidity of a State's abortion statute actually turns on the constitutional validity of Roe v. Wade, there will be time enough to reexamine Roe. And to do so carefully.”) So the time for a challenge to the amendment could be when the next law restricting abortion is passed, and the defense relies on the amendment.

Several state constitutional amendments have been overturned by courts for violating constitutional rights. So even though a “no right to abortion” amendment has not yet been overturned, it should not be assumed that it never will be, as easily as any state law. Examples of state constitutional amendments overturned by courts for violating the Constitution:

Cummings v. Missouri, 71 U.S. 277 (1867) a Missouri oath to hold office designed to keep out former confederate soldiers was ruled an unconstitutional Bill of Attainder.

Hollingsworth v. Perry, 570 U.S. 693 (2013) a California same sex marriage ban.

Romer v. Evans, 517 U.S. 620 (1996) a Colorado gay rights ban.

Awad v. Ziriax, 10th Circuit, January 10, 2012 an Oklahoma ban of the use of Sharia Law in court.

Giles v. Harris, 1903, and Giles v. Teasley, 1904, courts winked at disenfranchising Blacks, but explicitly accepted jurisdiction over state constitutions violating the 14th and 15th Amendments.

It makes the 14th Amendment mean nothing

We are all glad that the 14th Amendment empowered courts to overrule states which still, four years after the Civil War ended, said blacks have no fundamental right to liberty. But now courts do worse – deprive a whole class of human beings of a fundamental right to even live! Letting federal courts decide which rights are fundamental, and which humans get them, solved the problem of states denying fundamental rights. What can solve the problem of courts denying fundamental rights? Giving states back the unaccountable authority to define rights within their borders? Replacing unaccountable courts with unaccountable states? It would reverse the 14th Amendment to let states dictate to courts that women do not have the fundamental right to remove foreign material from their bodies whose humanity cannot be confirmed, as courts frame the issue. You say, “but that is an erroneous factual premise! Babies’ humanity has been confirmed! Killing them is murder! Mothers can have no fundamental right to kill people who have a fundamental right to live!” Correct, and I am begging states to expose that erroneous factual premise. But a state constitutional amendment is an awkward venue for exposing an erroneous factual premise. Tennessee’s Amendment doesn’t even mention the competing “fundamental right” of babies to live. West Virginia’s Amendment doesn’t either. Nor does Iowa’s SJR21. Alabama’s amendment does: “ it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, most importantly the right to life.” But not even Alabama’s Amendment includes any factual evidence proving that babies are fully human, giving them a “right to life” protected by the 14th Amendment, which is the legal and logical reason there can be no “fundamental right” of anyone to wantonly kill them. Nor would a state constitutional amendment be a normal venue for that kind of evidence. These amendments only say there is no right to abortion. They do not address, much less challenge, Roe’s professed inability to “speculate” about “when life begins”. They thus leave unchallenged the rationale for calling abortion a “fundamental right”. Neither do they offer any reason for transferring the final authority for establishing rights from courts to states, as the power to overrule “abortion is a fundamental right” with “abortion is not a fundamental right” must be described. A state constitution indeed has greater authority than a state court. But the 14th Amendment to the U.S. Constitution has greater authority than a state constitution. The 14th Amendment specifically subjects states to courts when states deprive classes of people of equal rights. Therefore a state constitutional amendment is an awkward, if not unconstitutional, venue for establishing either the fundamental right of babies to live, or the lack of any right of mothers to murder them. It is certainly not a court-recognized venue for defining fundamental rights. It challenges the 14th Amendment.

The Solution is for legislatures to seriously exercise the court-recognized authority of legislatures to establish that the factual premise of abortion precedents is erroneous – one of stare decisis’ grounds for reversal. For example, legislatures don’t cite any fact-finding legislative authority than their own, to establish that babies “at all stages” are legally recognizable as fully human. They don’t mention the other 37 states, and Congress, which have so ruled in “unborn victims of violence” laws. They mention various current medical evidence untested in court, but don’t mention the thousands of expert medical witnesses in abortion prevention trials who have so testified, and were never refuted; or the dozens of juries who acquitted in those trials when they were persuaded that human lives were saved, which justified a little trespassing. It is more powerful in court than evidence that a fact is true, that court-recognized fact finders agree overwhelmingly that it is true. That is so much stronger, that even if it weren’t true, courts would have to accept the consensus of fact finding authorities that it is. Just like saying someone may in fact understand law, but it is much stronger evidence that he understands law if he passes a bar exam. Someone may be an excellent teacher, but he will get nowhere applying for a teaching job unless he has a teaching degree and a teaching certificate. Someone may make an excellent brain surgeon, but he will not be allowed to try unless he graduates from medical school. Our culture and our laws are built on formal measures of expertise. That’s why all the evidence in the world that babies are recognizably human doesn’t matter in court, until it has been entered in court records by court-approved fact finders. It has been. And even were a future case to muster some expert witness claiming positively that babies become recognizably human well after fertilization, like after birth, the claim would be seen as absurd because he would be the very first to make that claim in court, contrary to the thousands of expert witnesses who say it begins at minute one, the dozens of juries, the 38 states, Congress, and several individual judges. It would be impossible for any judge, facing those court records, to disagree that the factual basis for abortion precedents has been erroneous. Lower courts say all these legally tested, legally recognizable facts are irrelevant because Roe ruled that baby humans are not “persons” as a “matter of law”. It can easily be shown that is the opposite of Roe’s reasoning – Roe treated the facts of “when life begins” as dispositive: once “established”, then “of course” the 14th Amendment will require all states to outlaw abortion.

“...we...would not have indulged in statutory interpretation favorable to abortion...if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.” - Roe v. Wade

Nor did Roe, or any other Supreme Court precedent, say there can be any humans who “as a matter of law” are less than “persons”. Roe made “recognizably human” part of its definition of “persons”. If a class of humans could be ruled not “persons” “as a matter of law”, then the 14th Amendment could no longer stop the slavery of Blacks. Except it would not be Blacks now, because Blacks vote. So it would have to be some class of humans who do not vote. Like Christians. Or “illegals”. 46 years later, every court-recognized fact finder that has taken a position, in every category of court-recognized fact finders, agrees that “when [constitutionally protected human] life begins” is from minute one. No court-recognized fact finder has ever said it begins any later. Legislatures need to cite this legally recognizable evidence. If that is not enough consensus for a judge to know a fact, it is impossible for any judge to know anything.