Personhood amendments after Whole Woman's Health v. Hellerstedt.

Author:Morrison, Steven R.
 
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Abstract

Over the past six years, pro-life advocates have used Targeted Regulation of Abortion Provider (TRAP) laws and state-level constitutional personhood amendments to end abortion. The United States Supreme Court's recent opinion in Whole Woman's Health v. Hellerstedt suggests that the TRAP strategy will give way to a greater push for personhood amendments. This is so for three reasons. First, Whole Woman's Health undermined the woman's-health basis for TRAP laws and may encourage advocates to refocus their efforts on fetal rights. Second, Whole Woman's Health limited the types of statutes that can survive judicial scrutiny, but left constitutional amendments untouched. Third, with TRAP laws under attack, the pro-life movement's only other sustained, institutional strategy is to push personhood amendments.

Whole Woman's Health also reinforced the Planned Parenthood of Southeastern Pennsylvania v. Casey undue burden test. The law around abortion rights, therefore, has become less favorable to pro-life advocates. The fight over reproductive rights will thus become more overtly political. Because personhood amendments are broad and vague enough not to be facially unconstitutional, and because they engage voters' social and moral preferences, they represent the political future of the pro-life movement. Advocates would, therefore, do well to concentrate 011 the political aspects of personhood amendments.

This Article illuminates those political aspects by analyzing the 2014 campaign against North Dakota's personhood amendment, which is broadly representative of past--and probably future--campaigns from three vantage points. Historically, it places North Dakota's campaign in the context of the post-Roe v. Wade fight over abortion rights and the probable effect of Whole Woman's Health. Legally, this Article analyzes the salient legal issues arising from the amendment and its possible impacts, most importantly 011 reproductive rights, end-of-life care, and in vitro fertilization. Politically, the Article reports the results of a survey the author performed, which details why the North Dakota amendment failed so decisively at the ballot box. Whole Woman's Health may signal a new era for reproductive rights; it will certainly mean that personhood amendments become more attractive to pro-life advocates. This Article provides the insight necessary to understand that shift.

Contents Introduction I. Measure 1 and the Campaign A. The Historical Context B. Measure 1 C. Measure 1 and the Future of Personhood Campaigns D. Whole Woman's Health and its Effect on the Personhood Movement II. The Legal Argument A. Definitions 1. The Inalienable Right to Life 2. The Definition of Life 3. The Obligation to Protect the Right to Life B. The Question of Self-Execution C. The Potential Legal Ramifications of a Self-Executing Amendment 1. Abortion and Medical Decision-Making 2. In Vitro Fertilization 3. Extraordinary End-of-Life Care III. The Survey of NDAM1 Members A. Messaging B. Bad Law C. Spokespeople D. Community Oriented E. Bipartisan F. Planning G. Legislative/Judicial Environment H. Funding I. Organization J. "No" Vote IV. Empirical Support A. Messaging B. Bad Law C. Community-Oriented Spokespeople D. Bipartisan E. Legislative/Judicial Environment F. Funding V. Limitations and Applications Conclusion Introduction

There have been demonstrable legal successes against the right to obtain an abortion, (1) especially since around 2010 with the onslaught of Targeted Regulation of Abortion Provider (TRAP) laws, which had been introduced sporadically since the 1980s. (2) In 2016, however, the United States Supreme Court in Whole Woman's Health v. Hellerstedt (3) issued a broadside against these laws, requiring not only that they present no undue burden to obtaining an abortion, but also that they actually serve the pregnant woman's health. (4) While Whole Woman's Health left in place the undue burden test established in Planned Parenthood of Southeastern Pennsylvania v. Casey, (5) it put a stake through the heart of one of the pro-life movement's two main legal strategies.

The other strategy entails pushing state-level constitutional personhood amendments. (6) These amendments have in fact been called the wave of the pro-life future (7) and are viewed as mechanisms useful in overturning Roe v. Wade (8) and Casey. (9) As Whole Woman's Health decimated the legal viability of TRAP laws, pro-life advocates will likely shift their resources to enacting personhood amendments.

In addition to the fact that personhood amendments are the prolife movement's second strategy after TRAP laws, Professor Mary Ziegler identified two reasons to believe that the movement will increasingly push these amendments. (10) First, Whole Woman's Health undermined the movement's focus on the purported health of the pregnant woman, requiring the movement to reassess this tactic. (11) Some have suggested "that it is time to refocus 011 fetal rights," (12) which is what personhood amendments are all about. Second, with Whole Woman's Health calling into question the validity of anti-abortion statutes, there may be a renewed push to amend constitutions, whether federal or state. (13) Personhood amendments have been touted as the very amendments that can undermine the Court's reasoning in Roe.

The law around abortion rights, therefore, has become less favorable to pro-life advocates. The fight over reproductive rights will thus become more overtly political. Because personhood amendments are broad and vague enough not to be facially unconstitutional, and because they engage voters' social and moral preferences, they represent the political future of the pro-life movement, and efforts to enact them persist. (14) Advocates would, therefore, do well to concentrate on the political aspects of personhood amendments.

Grassroots campaigns for and against abortion rights have been doing this for a long time. (15) Legal scholars, however, have generally not taken a political approach to personhood amendments. Instead, they discuss the philosophical notion of personhood, (16) the legal use of personhood amendments as a wedge to undermine Roe (17) and the unintended consequences of personhood amendments. (18) As one exception, law professor Maya Manian has offered a political opinion for why voters uniformly reject, personhood amendments. (19)

This Article addresses the gap in scholarship on personhood amendments by analyzing the successful fight against the 2014 personhood amendment--known as "Measure 1"--that was on the North Dakota ballot. It does so in three ways.

Historically, this Article places Measure 1 in the context of the post-Roe fight over the abortion right, and analyzes the probable effect of Whole Woman's Health on the personhood movement. Legally, the Article analyzes the salient legal issues arising from the amendment and its possible impacts, most importantly on reproductive rights, end-of-life care, and in vitro fertilization ("IVF"). Politically, this Article reports the results of a survey I performed of the most active members of the campaign against Measure 1, called North Dakotans Against Measure 1, or "NDAM1." (20)

This three-part analysis will help scholars understand the role that personhood amendments have played and will play in the broader fight over reproductive rights. It also provides a detailed snapshot of a movement that began with Roe, may have been fundamentally altered by Whole Woman's Health, and will continue well into the future. This Article will also help advocates in future personhood campaigns advance their cause. For anti-amendment advocates, this Article provides a roadmap to victory. For pro-amendment advocates, it offers a sobering analysis of the hurdles that they must overcome.

This Article is applicable nationwide for four reasons.

First, Measure 1 "signals a new approach for the groups championing personhood measures, one that critics say hides the initiatives' true goals from voters." (21) Measure 1 may be a harbinger of campaigns to come.

Second, it seems that these amendments will not change substantively. Like Measure 1, all the personhood amendments in Mississippi and Colorado--where personhood amendments have been advanced in the past--entailed a broad definition of personhood that would have covered the unborn as well as anyone living. (22) Proponents of personhood seem to favor this broad application because it would supposedly prohibit not only abortion, but also IVF (23) and stem cell research, (24) both of which some pro-life advocates oppose. (25) Personhood supporters may even support personhood amendments as a mechanism for prohibiting living wills and other end-of-life care. (26) Personhood amendments may, furthermore, be part of the pro-life movement's attempt to change not just the laws 011 abortion, but the culture itself. (27) Although personhood amendments could be drafted to apply only to abortion, and thus be politically palatable in many majority-conservative states, such a move may dilute their attractiveness.

Third, the campaign against Measure 1 was highly successful in moving voters' preferences. Studies show that while political campaigns do have an effect, (28) "only 10-15% of voters are persuadable." (29) Given that (1) campaign messages tend to face "significant partisan resistance ... or fall[] on deaf ears," (30) (2) North Dakota overwhelmingly votes conservative, (31) and (3) Measure 1 was viewed as a conservative initiative, it is remarkable that the ultimate vote was 64.13% to 35.87% against Measure 1. (32) This nearly two-to-one ratio is comparable with other failed personhood amendment campaigns. Colorado's limited personhood amendment in 2014 failed by a vote of 64.87% to 35.13%; (33) Mississippi's personhood amendment failed in 2011 by a vote of 57.63% to 42.37%; (34) and other personhood amendment iterations in Colorado in 2010 and 2008 failed by margins of 70.53% to...

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