James Bopp

House Judiciary Committee Takes Up Planned Parenthood Witch Hunt, Women And Voting Rights Suffer

An overwhelming amount of energy spent rehashing decades of settled law and Supreme Court precedent at the expense of women who seek not only abortion services from Planned Parenthood, a very small portion of their work, but a wide range of reproductive and preventive healthcare.

The Personhood Movement: Undermining Roe In The Courts: Part 3

This is the third post in a RWW series on the reemergence of the fetal personhood movement and what it means for the future of abortion rights in the U.S.

Part 1: The Personhood Movement: Where It Comes From And What It Means For The Future Of Choice
Part 2: The Personhood Movement: Internal Battles Go Public
Part 4: The Personhood Movement: Regrouping After Defeat

As we have detailed in previous posts in this series, ever since the anti-choice movement rose to prominence in the wake of Roe v. Wade, it has been divided over how to go about repealing Roe and recriminalizing abortion in the U.S.

Groups like Americans United for Life (AUL) and the National Right to Life Committee (NRLC) have achieved great success in pushing states to adopt incremental measures targeting abortion providers in the name of protecting women’s health and in advocating for national policies — such as the 2003 “partial-birth” abortion ban and the 20-week abortion ban currently being considered by Congress — that attempt to undermine the legal reasoning in Roe by targeting a small segment of abortion procedures.

But the anti-choice personhood movement believes that the incremental strategy is doing too little to end legal abortion. They believe they have a better plan.

The personhood movement argues that small, incremental legal victories cutting off access to abortion will never achieve the ultimate goal of completely criminalizing the procedure — in part because those measures fail to make a moral argument on behalf of the humanity of the fertilized egg and fetus.

At the founding convention of the Personhood Alliance late last year, the chief of staff to Alabama Supreme Court Chief Justice Roy Moore, notorious for his legal fight over a Ten Commandment monument he placed in the courthouse rotunda, discussed an alternate legal strategy to end abortion rights. As Nina Martin has outlined in The New Republic, Moore’s protégé and colleague Justice Tom Parker has been carefully laying out a legal framework to overturn Roe, not by constitutional amendment, but by the legal redefinition of what it means to be a person protected by the law.

Parker, with Moore’s backing, has been building a body of jurisprudence that offers a blueprint for a personhood victory in the courts. In doing so, he’s drawn the attention and praise of anti-choice activists; Liberty Counsel, a right-wing legal group, has called him a “modern-day Wilberforce.”

Since efforts to overturn Roe by passing a Human Life Amendment or a legislative alternative faltered in Congress in the 1970s and 1980s, personhood advocates have focused on the states, passing legislation giving limited rights to fetuses as separate entities from pregnant women. Since 1986, 38 states have passed “fetal homicide” laws identifying fetuses at some or all stages of development as separate victims of crime and in 2004 Congress passed a similar law covering federal crimes. Similarly, in 18 states substance abuse during pregnancy is legally considered child abuse. In Alabama last year, Republicans passed a law allowing judges to appoint lawyers for fetuses. As Elizabeth Nash, senior state issues associate at the Guttmacher Institute, put it in an interview, “all of that is about trying to build up a legal case that personhood starts at fertilization.”

Personhood USA’s 2014 attempt to insert personhood language into Colorado law drew on this legal history, specifically limiting its new definition of personhood to the Colorado criminal code and Colorado Wrongful Death Act. But the proposal was nonetheless widely recognized as an attempt to ban abortion, or at least to set up a legal battle challenging Roe. In fact, Colorado had already passed laws imposing extra penalties for crimes against pregnant women, the purported purpose of the personhood amendment. “They are changing the tone, they are changing the language, they are changing the messaging to try to win,” Nash said.

Parker has chronicled laws treating fetuses as full-fledged humans in certain cases to argue that “[t]oday, the only major area in which unborn children are denied legal protection is abortion, and that denial is only because of Roe.” He has urged the Supreme Court to address the issue at the next chance it gets.

Parker and Moore’s strategy relies on what the personhood movement’s proponents believe is a loophole in Roe v. Wade that would allow anti-abortion advocates to effectively undo the decision without a constitutional amendment or a Supreme Court friendlier to their cause. In Roe, the Justices rejected the idea of fetal personhood. Justice Blackmun wrote in his majority opinion that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment,” noting, “If this suggestion of personhood is established, the appellant's case, of course, collapses...for the fetus' right to life would then be guaranteed specifically by the Amendment.”

A federal bill that currently has 132 cosponsors in the House and 21 in the Senate takes aim at this supposed loophole in Roe, simply declaring that “the right to life guaranteed by the Constitution is vested in each human being," which includes “each member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being.”

Sen. Rand Paul of Kentucky, the chief sponsor of the Senate bill, signed a fundraising email for the pro-personhood National Pro-Life Alliance in November, arguing that his was the strategy that would work:

The Supreme Court itself admitted  if Congress declares unborn children 'persons' under the law, the constitutional case for abortion-on-demand 'collapses.'

Alabama’s Supreme Court is the most prominent court to give a serious hearing to the personhood strategy, long considered by even some in the anti-choice movement to be a crackpot theory and a potential political and legal disaster. As recently as 2009, Clarke Forsythe, senior counsel at Americans United for Life, wrote in the National Review that the so-called “personhood loophole” was an “urban legend” and those pursuing it were “heading toward a brick wall.” Forsythe argued that in 1992 Casey decision, the Supreme Court had shifted the abortion debate from the personhood of fetuses to the rights of women, and that that was therefore the ground that the anti-choice movement should be playing on. “The real challenge for pro-lifers in 2009 is to effectively address the assumption that abortion is good for women,” he wrote, presaging AUL’s revamped woman-focused messaging.

Even more alarming to the personhood strategy’s detractors in the anti-choice movement is the possibility that a personhood challenge to Roe could create the opportunity for a Supreme Court ruling that would actually strengthen constitutional protections for abortion rights. Justice Ruth Bader Ginsburg, for instance, has said that she believes abortion rights should be secured under the equal protection clause of the 14th Amendment, making the issue more clearly about the rights of women. In 2010, Austin Ruse of the Catholic Family & Human Rights Institute (C-FAM) wrote, “If a personhood amendment comes before this court, a new and terrifying decision may put the pro-life movement back a quarter century or more.”

In 2007, as the anti-choice movement’s schism over a ban on so-called “partial-birth” abortion was gaining national attention, Georgia Right to Life, which was at the the state affiliate of NRLC, worked with legislators to introduce a state constitutional amendment defining a “person” under state law as “including unborn children at every state of their biological development, including fertilization.”

Although the Georgia amendment was based on language originally drafted as a federal constitutional amendment by NRLC, NRLC’s chief counsel James Bopp, Jr. tried to shut it down. In a lengthy and frank memo to his fellow anti-choice activists, Bopp contended that such an amendment would be immediately struck down in federal courts and, if it made it to the Supreme Court, could give the court’s majority the opportunity to rewrite Roe in the way favored by Ginsburg. The state-level personhood strategy, he cautioned, was “presently doomed to expansive failure.”

Instead, Bopp said, the anti-choice movement should continue its incremental strategy, which was succeeding in curtailing access to abortion while keeping the issue in the public eye. He wrote that the “partial-birth” abortion law had been a successful example of this strategy because it “forced the pro-abortion camp to publicly defend a particularly visible and gruesome practice.” Acknowledging that “most pro-lifers” believe that abortion should only be available to save the life of a pregnant woman, he warned that absolutist, no-exceptions approaches like personhood were both legally unwise and poor public relations:

By contrast, the pro-life movement must at present avoid fighting on the more difficult terrain of its own position, namely arguing that abortion should not be available in cases of rape, incest, fetal deformity, and harm to the mother. While restricting abortion in these situations is morally defensible, public opinion polls show that popular support for the pro-life side drops off dramatically when these “hard” cases are the topic. And while most pro-lifers believe that a consistent pro-life position requires permitting abortion in only the rare circumstances where it is necessary to save the life of the mother, some pro-lifers believe that there should not even be an exception to preserve the life of the mother. Other pro-lifers advocate exceptions for rape or incest. This is an important debate to have, and we should be ready to convince the public of the need for few, if any, exceptions to laws prohibiting abortion when such laws can be upheld. However, since that is currently not the case, such a debate is premature and would undermine public support for the pro-life position.

Responding to Bopp’s memo, the conservative Thomas More Law Center, which drafted the Georgia amendment, argued that the incremental strategy had taken too long and done too little and that “after 34 years of abortion on demand through all nine months of pregnancy, it is time to rethink pro-life strategy.”

“[T]he central holding of Roe v. Wade remains the primary obstacle to any meaningful pro-life initiative that seeks to end abortion,” wrote Thomas More attorney Robert J. Muise. “To remove this obstacle, a case must be presented to the United States Supreme Court that challenges the central premise of Roe — that the unborn is not a person within the meaning of the law.”

If personhood laws were to succeed in the courts, the legal implications would be immense and unpredictable.

The ambiguous wording of personhood measures has led to concerns that they could be interpreted to outlaw oral contraception, IUDs and in-vitro fertilization. But birth control is not the only issue. As the National Advocates for Pregnant Women’s Lynn Paltrow and Fordham sociologist Jeanne Flavin have documented, laws granting legal rights to fetuses outside the context of abortion have led to hundreds of cases of pregnant women being arrested or otherwise apprehended after suffering miscarriages or for alleged drug and alcohol use deemed to be harmful to the fetus.

In countries that completely criminalize abortion — the goal of the “pro-life” movement in the U.S. — pregnant woman can find themselves in terrifying situations: recently in El Salvador, a woman was sentenced to 30 years in prison for murder after suffering a miscarriage.

As Paltrow told Newsweek in 2012, “There’s no way to give embryos constitutional personhood without subtracting women from the community of constitutional persons.”

By redefining what it means to be a person under the law, personhood measures could also have a broad legal impact on issues unrelated to reproductive rights, threatening to upend everything from inheritance law to census results. In 2014, the Colorado Bar Association opposed the state’s personhood ballot measure, warning that the vaguely worded measure would have “potentially serious, unintended and unknown consequences for Colorado lawyers…From areas of Family Law to Probate Law to Real Estate Law, as well as the explicit effect on Criminal Law and Wrongful Death statutes, this Amendment could create uncertainty and endless litigation.”

Daniel Becker, the former leader of Georgia Right to Life and founder of the Personhood Alliance, also sees the personhood issue as extending beyond abortion rights, but in a different direction. The final chapter of Becker's 2011 manifesto, "Personhood," is written in the form of a science fiction story set in a "post-human future" in which computers have gained consciousness, procreation has been moved to laboratories, and a "specialized sub-class of human-animal hybrids" has been developed to perform menial labor. The anti-abortion rights movement, he argues, will cease to be relevant in coming battles over biotechnology if it remains "at its heart, anti-abortion as opposed to pro-sanctity of human life." He argues that only by embracing full "personhood" rights for zygotes and fetuses will the movement remain viable in the future.

The personhood movement, while it has hope in the legal system, also recognizes that it won’t get far without winning hearts and minds. In the final post in this series, we’ll look at the movement’s efforts to reorganize in the wake of electoral defeats.

Montana Campaign Finance Caps Can Stay For Now

The Court declines to wreck Montana's campaign finance system just two weeks before Election Day.

6 Right-Wing Zealots and the Crazy Ideas Behind the Most Outrageous Republican Platform Ever

Note: this story is cross-posted at AlterNet.

The official 2012 Republican Party platform is a far-right fever dream, a compilation of pouting, posturing, and policies to meet just about every demand from the overlapping Religious Right, Tea Party, corporate, and neo-conservative wings of the GOP.  If moderates have any influence in today’s Republican Party, you wouldn’t know it by reading the platform.  Efforts by a few delegates to insert language favoring civil unions, comprehensive sex education, and voting rights for the District of Columbia, for example, were all shot down.  Making the rounds of right-wing pre-convention events on Sunday, Rep. Michele Bachmann gushed about the platform’s right-wing tilt, telling fired-up Tea Partiers that “the Tea Party has been all over that platform.”

Given the Republican Party’s hard lurch to the right, which intensified after the election of Barack Obama, the “most conservative ever” platform is not terribly surprising. But it still didn’t just happen on its own.  Here are some of the people we can thank on the domestic policy front.
1. Bob McDonnell.   As platform committee chair, McDonnell made it clear he was not in the mood for any amendments to the draft language calling for a “Human Life Amendment” to the U.S. Constitution and legal recognition that the “unborn” are covered by the Fourteenth Amendment – “personhood” by another name.  McDonnell is in many ways the ideal right-wing governor: he ran as a fiscal conservative and governs like the Religious Right activist he has been since he laid out his own political platform in the guise of a master’s thesis at Pat Robertson’s Regent University. 
His thesis argued that feminists and working women were detrimental to the family, and that public policy should favor married couples over “cohabitators, homosexuals, or fornicators.”  When running for governor, McDonnell disavowed his thesis, but as a state legislator he pushed hard to turn those positions into policy.  As the Washington Post noted, “During his 14 years in the General Assembly, McDonnell pursued at least 10 of the policy goals he laid out in that research paper, including abortion restrictions, covenant marriage, school vouchers and tax policies to favor his view of the traditional family. In 2001, he voted against a resolution in support of ending wage discrimination between men and women.”  As governor, McDonnell signed the kind of mandatory ultrasound law that is praised in this year’s platform.  When his name was floated as a potential V.P. pick, Cecile Richards of Planned Parenthood decried his “deeply troubling record on women’s health.”
2 Tony Perkins.  Perkins heads the Family Research Council, whose Values Voter Summit is the Religious Right’s most important annual conference, at which movement activists rub shoulders with Republican officials and candidates.  Perkins bragged in an email to his supporters how much influence he and his friend David Barton (see below) had on the platform.  Perkins was an active member of the platform committee, proposing language to oppose school-based health clinics that provide referrals for contraception or abortion, and arguing for the strongest possible anti-marriage equality language.  Perkins also introduced an amendment to the platform calling on the District of Columbia government to loosen its gun laws, which Perkins says still do not comply with recent Supreme Court rulings.
The media tends to treat Perkins, a telegenic former state legislator, as a reasonable voice of the Religious Right, but his record and his group’s positions prove otherwise.  Perkins has been aggressively exploiting the recent shooting at FRC headquarters to divert attention from the group’s extremism by claiming that the Southern Poverty Law Center was irresponsible in calling FRC a hate group.  Unfortunately for Perkins, the group’s record of promoting hatred toward LGBT people is well documented.  Perkins has even complained that the press and President Obama were being too hard on Uganda’s infamous “kill the gays” bill, which he described as an attempt to “uphold moral conduct.” It’s worth remembering that Perkins ran a 1996 campaign for Louisiana Senate candidate Woody Jenkins that paid $82,600 to David Duke for the Klan leader’s mailing list; the campaign was fined by the FEC for trying to cover it up.
3. David Barton.  Texas Republican activist and disgraced Christian-nation “historian” Barton has had a tough year, but Tampa has been good to him.  He was perhaps the most vocal member of the platform committee, and was a featured speaker at Sunday’s pre-convention “prayer rally.” During the platform committee’s final deliberations, Barton couldn’t seem to hear his own voice often enough.  He was the know-it-all nitpicker, piping up with various language changes, such as deleting a reference to the family as the “school of democracy” because families are not democracies.  He thought it was too passive to call Obamacare an “erosion of” the Constitution and thought it should be changed to an “attack on” the founding document.  He called for stronger anti-public education language and asserted that large school districts employ one administrator for every teacher.  He backed anti-abortion language, tossing out the claim that 127 medical studies over five decades say that abortion hurts women.  Progressives have been documenting Barton’s lies for years, but more recently conservative evangelical scholars have also been hammering  his claims about American history.  The critical chorus got so loud that Christian publishing powerhouse Thomas Nelson pulled Barton’s most recent book – which, ironically, purports to correct “lies” about Thomas Jefferson – from the shelves.  Of course, Barton has had plenty of practice at this sort of thing, from producing bogusdocumentaries designed to turn African Americans against the Democratic Party to pushing his religious and political ideology into Texas textbooks. Barton’s right-wing friends like Glenn Beck have rallied around him. And nothing seems to tarnish Barton with the GOP allies for whom he has proven politically useful over the years. 
4. Kris Kobach.  Kris Kobach wants to be your president one day; until now, he has gotten as far as Kansas Secretary of State.  He may be best known as the brains behind Arizona’s “show me your papers” law, and he successfully pushed for anti-immigrant language in the platform, including a call for the federal government to deny funds to universities that allow illegal immigrants to pay in-state tuition – a plank that puts Kobach and the platform at odds with Kansas law.  Immigration is not Kobach’s only issue. He is an energizing force behind the Republican Party’s massive push for voter suppression laws around the country, and he led the effort to get language inserted into the platform calling on states to pass laws requiring proof of citizenship for voter registration.  He also pushed language aimed at the supposed threat to the Constitution and laws of the US from “Sharia law”; getting this language into the platform puts the GOP in position of endorsing a ludicrous far-right conspiracy theory.  Kobach hopes that will give activists a tool for pressuring more states to pass their own anti-Sharia laws.  In the platform committee, he backed Perkins’ efforts to maintain the strongest language against marriage equality.  Even an amendment to the marriage section saying that everyone should be treated “equally under the law” as long as they are not hurting anyone else, was shot down by Kobach.  Kobach also claims he won support for a provision to oppose any effort to limit how many bullets can go into a gun’s magazine.
5. James Bopp.  James Bopp is a Republican lawyer and delegate from Indiana whose client list is a Who’s Who of right-wing organizations, including National Right to Life and the National Organization for Marriage, which he has represented in its efforts to keep political donors secret.  As legal advisor to Citizens United, Bopp has led legal attacks on campaign finance laws and played a huge role in bringing us the world of unlimited right-wing cash flooding our elections.  Bopp chaired this year’s platform subcommittee on “restoring constitutional government,” which helps explain its strong anti-campaign finance reform language. 
Bopp is also an annoyingly petty partisan, having introduced a resolution in the Republican National Committee in 2009 urging the Democratic Party to change its name to the “Democrat Socialist Party.”  In this year’s platform committee, Bopp successfully pushed for the removal of language suggesting that residents of the District of Columbia might deserve some representation in Congress short of statehood.  His sneering comments, and his gloating fist-pump when the committee approved his resolution, have not won him any friends among DC residents – not that he cares.  He also spoke out against a young delegate’s proposal that the party recognize civil unions, which Bopp denounced as “counterfeit marriage.”  In spite of all these efforts, Bopp has been at the forefront of Romney campaign platform spin, arguing in the media that the platform language on abortion is not really a “no-exceptions” ban, in spite of its call for a Human Life Amendment and laws giving Fourteenth Amendment protections to the “unborn.” 
6. Dick Armey.  Former Republican insider Dick Armey now runs FreedomWorks, the Koch-backed, corporate-funded, Murdoch-promoted Tea Party astroturfing group – or, in their words, a “grassroots service center.” Armey has been a major force behind this year’s victories of Tea Party Senate challengers like Ted Cruz in Texas and Richard Mourdock in Indiana, both of whom knocked off “establishment” candidates – FreedomWorks also backed Rand Paul in Kentucky and Mike Lee in Utah in 2010.  As Alternet’s Adele Stan has reported, FreedomWorks’s goal is to build a cadre of far-right senators to create a “power center around Jim DeMint,” the Senate’s reigning Tea Party-Religious Right hero. 
To put Armey’s stamp on the platform, FreedomWorks created a “Freedom Platform” project, which enlisted Tea Party leaders to come up with proposed platform planks and encouraged activists to vote for them online. Then FreedomWorks pushed the party to include these planks in the official platform:
      Repeal Obamacare; Pursue Patient-Centered Care
      Stop the Tax Hikes
      Reverse Obama’s Spending Increases
      Scrap the Code; Replace It with a Flat Tax
      Pass a Balanced Budget Amendment
      Reject Cap and Trade
      Rein in the EPA
      Unleash America’s Vast Energy Potential
      Eliminate the Department of Education
      Reduce the Bloated Federal Workforce
      Curtail Excessive Federal Regulation
      Audit the Fed
An Ohio Tea Party Group, The Ohio Liberty Coalition, celebrated that 10 of 12 made it to the draft – everything but the flat tax and eliminating the Department of Education.  But FreedomWorks gave itself a more generous score, arguing for an 11.5 out of 12.  FreedomWorks vice president Dean Clancy said that the platform’s call for a “flatter” tax “opens the door to a Flat Tax” and said that they considered the education section of the platform a “partial victory” because it includes “a very strong endorsement of school choice, including vouchers.”
Honorable mention: Mitt Romney.  This is his year, his party, and his platform.  The entire Republican primary was essentially an exercise in Romney moving to the right to try to overcome resistance to his nomination from activists who distrusted his ideological authenticity.   The last thing the Romney campaign wanted was a fight with the base, like the one that happened in San Diego in 1996, when Ralph Reed and the Christian Coalition delighted in publicly humiliating nominee Robert Dole over   his suggestion that the GOP might temper its anti-abortion stance.  Romney signaled his intention to avoid a similar conflict when he named Virginia Gov. Bob McDonnell to chair the platform committee. 
Keeping Everybody Happy
The new GOP platform reflects Romney’s desire to placate every aspect of the party’s base.  It also demonstrates both the continuingpower of the Religious Right within the GOP, as well as ongoing efforts to erase any distinctions between social conservatives and anti-government zealots, as demonstrated by Ralph Reed welcoming Grover Norquist to his Faith and Freedom coalition leadership luncheon on Sunday.

GOP Platform Committee Disses DC

The Republican Party’s platform committee spent the day addressing amendments to sections of the platform draft that came up through subcommittees.  It seems that the DC delegation had managed to get into the draft platform some vague language supporting improved representation. It didn’t last. 

The language said that while the Party is opposed to statehood, there could be constructive alternative means of representation that should be considered.  Even that was too much.  James Bopp, delegate from Indiana, dripping contempt for DC, called for that to be hacked out, which it was. He said the District already has representation through its delegate and through the "Democrat Party," which is “of, by, and for the federal government.”

Watch Bopp's comments and his little victory celebration:

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