This is the second 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 3: The Personhood Movement: Undermining Roe In The Courts
Part 4: The Personhood Movement: Regrouping After Defeat
As proponents of the “personhood” strategy to end legal abortion like to remind those who will listen, the original goal of the anti-abortion rights movement after Roe v. Wade was to pass a constitutional amendment overturning the decision. And one possible amendment — along with a dubious statutory alternative — would have done so by defining “personhood” as starting at conception.
In the 1970s and 1980s, dozens of anti-Roe “Human Life Amendments” were introduced in Congress, containing a variety of language. Only one made it to an up-or-down vote in Congress: the “Hatch-Eagleton Amendment,” which would have simply gutted Roe by stating, “A right to abortion is not secured by this Constitution.” In June of 1983, the amendment fell far short of the two-thirds majority needed for a constitutional amendment, garnering just 49 yes votes.
But there was another strategy for amending the Constitution to reverse Roe, one that rather than just returning to the states the power to regulate abortion would have overturned Roe by declaring that fetuses are "persons" protected under the Constitution. In 1976, one such amendment was put up for a test vote in the Senate, garnering only 40 votes in support.
The language of these amendments was a matter of bitter internal debate among anti-abortion rights groups. One draft amendment formulated by the National Right to Life Committee in 1974, known as the NRLC Amendment, would have declared that the word "person" in the 14th and 5th Amendments "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," but included a specific exemption for "medical procedures required to prevent the death of the mother."
Some members of NRLC’s budding coalition thought the amendment didn’t go far enough to prohibit abortion, arguing that the “life of the mother” exception was too broad. Two founding members of NRLC, Judie and Paul Brown, had left the group because they perceived it as too willing to compromise and founded their own anti-choice group, the American Life League (ALL) and helped to establish the radical abortion “rescue” movement. In 1979, ALL wrote its own amendment, nicknamed the “Paramount Amendment,” which would have erased all abortion exceptions by declaring, “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.”
Faced with a splintering movement, NRLC held months of talks with its fellow anti-abortion groups, hoping to hammer out a Human Life Amendment that they could unify behind. In October of 1981, NRLC announced that “with tears of joy and happiness” it had “solved what formerly appeared to be an irreconcilable difference over a fundamental question: how to allow for just those abortions truly needed to prevent the death of the mother without at the same time making her right to life superior to that of her unborn child.”
NRLC’s new “Unity Amendment,” which was introduced by Sen. Jesse Helms of North Carolina that December (and which ALL still refused to support), tightened the “life of the mother” exception by adding the stipulation that abortion would be allowed only to “prevent the death of either the pregnant woman or her unborn offspring, as long as such law requires every reasonable effort be made to preserve the life of each.”
All of these amendments failed to get off the ground, as did a novel and controversial legislative approach to achieve the same goal. In 1981, Helms and Sen. Henry Hyde introduced a bill that they claimed could overturn Roe without a constitutional amendment or a new Supreme Court majority, by simply declaring that life begins “at conception.” The effect of the law, the New York Times reported at the time, would be to once again allow “states, if they choose, to prosecute abortion as murder.” President Reagan got behind the strategy, but legal scholars called the bill unconstitutional. NRLC and the National Conference of Catholic Bishops continued to favor the constitutional amendment strategy, doubting that the Helms-Hyde bill would hold up in the courts.
By that time, however, it became clear that a constitutional amendment and the Helms-Hyde personhood bill weren’t going anywhere in Congress, and proponents had already started focusing on other strategies to turn back the tide on abortion rights.
In 1975, the National Conference of Catholic Bishops had developed a plan to turn every diocese into an anti-choice political machine and to use its existing infrastructure to set up an office in every congressional district. The bishops’ plan included a four-pronged legislative strategy, which continues to guide the anti-choice movement today:
(a) Passage of a constitutional amendment providing protection for the unborn child to the maximum degree possible.
(b) Passage of federal and state laws and adoption of administrative policies that will restrict the practice of abortion as much as possible.
(c) Continual research into and refinement and precise interpretation of Roe and Doe and subsequent court decisions.
(d) Support for legislation that provides alternatives to abortion.
In other words: fight for an amendment to undo Roe, but at the same time work through the courts and legislatures to make it harder for women to access legal abortion. While Roe would remain the law of the land, women would not be able to actually exercise their rights.
Part of this strategy involved targeting public funding for abortions. Frederick Jaffe, Barbara Lindheim and Philip Lee explained in their 1981 book "Abortion Politics":
The new strategy was outlined by RTL [Right to Life] leader Randy Engel, who urged restrictive riders on “any and all federal legislation related directly or indirectly to health,” in order to keep the abortion issue visible and build support. She argued that the efforts to win interim legislation would provide antiabortion workers with political experience, would educate the public, and would force members of Congress to go on record one way or the other. Not least important, she added, this strategy would require the forces supporting abortion rights to expend time, effort and resources in opposing riders.
One of the early victories of this strategy was the 1976 passage of the Hyde Amendment, a rider to the health and human services spending bill that prohibited Medicaid from funding abortions for low-income women. The Hyde Amendment was a victory, but it provoked yet more squabbling within the anti-abortion rights movement.
When it was first passed, the Hyde Amendment contained one exception: for abortions that could save the life of a “clearly endangered” pregnant woman. But because it was attached to a spending bill, the Hyde Amendment had to be renewed annually. The next year, after a lengthy legislative deadlock, Congress kept the exception for saving a woman’s life and added additional exceptions for ensuring a woman’s long-term health and for pregnancies resulting from rape or incest.
The 1977 compromise allowing abortion funding for rape and incest survivors — which has been modified several times since then — was a setback for anti-choice hardliners, but the anti-abortion rights movmement's leaders continue to celebrate the Hyde Amendment’s repeated renewal. In 2013, on the amendment’s anniversary, National Right to Life crowed that “over one million people are alive today because of the Hyde Amendment.”
But Daniel Becker, a longtime personhood activist and founder of the new Personhood Alliance, sees it differently. “The Hyde Amendment,” Becker wrote in his 2011 book on the personhood concept, “damaged the very fabric of our mission. No longer would the lofty rhetoric of ‘sanctity of all human life’ and ‘the personhood of the unborn’ be embodied in a strategy to achieve those protections. The prolife movement had a seat at the political table, but contented itself with crumbs.”
In 2007, the anti-choice movement achieved another seeming victory that was divisive in its own ranks. The Supreme Court, which now included George W. Bush appointees John Roberts and Samuel Alito, reversed a previous decision and upheld the 2003 ban on a specific procedure that the anti-choice movement had labeled “partial birth abortion.”
Linda Greenhouse wrote in the New York Times that the decision, Gonzales v. Carhart, was a “vindication” of the anti-choice movement’s strategy of pursuing a “partial birth” ban after the 1992 Planned Parenthood v. Casey made a more sweeping victory look unfeasible: “By identifying the… procedure and giving it the provocative label ‘partial-birth abortion,’ the movement turned the public focus of the abortion debate from the rights of women to the fate of fetuses.”
As with the congressional fight over abortion coverage in Medicaid, abortion rights opponents hoped to use the debate over so-called “partial birth” abortion, an exceedingly rare procedure, to keep attention on their efforts to end legal abortion entirely.
But not everybody in the anti-choice movement was thrilled. In fact, the decision that was widely seen as a victory for the anti-choice movement brought into the public eye a long-simmering split in the movement.
Six weeks after Gonzales was handed down, a coalition of anti-abortion groups, including the Colorado chapter of National Right to Life, took out a full-page ad in newspapers around the country attacking Focus on the Family founder James Dobson for supporting the ruling.
One Denver pastor in the group, Bob Enyart, accused mainstream pro-life groups of fundraising off a strategy that “has no authority to prevent a single abortion” because other procedures could be used in place of the banned operation. Colorado Right to Life President Brian Rohrbough told the Washington Post, “What happened in the abortion world is that groups like National Right to Life, they're really a wing of the Republican Party, and they're not geared to push for personhood for an unborn child — they're geared to getting Republicans elected. So we're seeing these ridiculous laws like the Partial-Birth Abortion Ban put forward, and then we're deceived about what they really do."
As the Post noted, NRLC’s detractors started referring to the group as the “pro-life industry” — a term intentionally reminiscent of the anti-choice movement’s “abortion industry” epithet for abortion providers, implying that those groups had sold out and cared more about their fundraising than their mission. (Several years later, Rep. Paul Broun of Georgia was using similar rhetoric to question the group’s motives.)
A week later, leaders of Colorado Right to Life confronted the board of NRLC at its annual meeting, attacking its “immoral and failed anti-abortion strategy.” Enyart told the board, in a speech secretly recorded by Colorado Right to Life:
We’ve provided cover to pro-choice politicians, even Democrats, who would say, ‘I’m not an extremist, I supported the partial-birth abortion ban.’ We wasted 15 years while 20 million kids — 20 million kids — have died. We’ve spent a quarter of a billion dollars as an industry for a ban that does not have the authority to save one life. You guys are worried about what’s growing in Colorado. I’ll tell you what’s growing in Washington, D.C. It’s called the abortion weed. Child-killing regulations — that’s what National Right to Life is really good at — child-killing regulations prune the abortion weed and sanction its root.
National Right to Life promptly voted to kick the Colorado group out of the organization. Colorado Right to Life then hired an Abraham Lincoln impersonator to accost conference-goers with a revised version of the Gettysburg Address: "Four score and seven years ago, our fathers brought forth upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal...no exceptions!"
It was around this time that the “personhood” strategy began to see a national reemergence in the public eye, and along with it a legal theory that had long been dismissed even by leaders in the anti-choice movement.
The next post in this series will look at the debate within the anti-choice movement on how to best confront Roe v. Wade in the courts.
After waging an unprecedented campaign of obstructionism against President Obama’s nominees, Republicans are now crying crocodile tears over a rules change that would end the filibuster on certain judicial nominees.
NBC News points out that Republicans are not blocking judicial nominees over “concerns about ideology or qualifications, but over the president’s ability to appoint ANYONE to these vacancies.” This unprecedented blockade leaves Democrats with few options, as dozens of nominees are left unable to receive a simple confirmation vote.
It’s even harder to be sympathetic to Senate Republicans when you remember that just a few years ago, many of the very same Republicans who are today filibustering President Obama’s nominees willy-nilly were vowing that they would never, ever filibuster judicial nominees. Some even declared that judicial filibusters were unconstitutional and un-American.
But that was before there was a Democrat in the White House.
We take a look back at some of the Senate’s most strident opponents of filibustering judicial nominees, turned master obstructers.
1. Mitch McConnell (KY)
“Any President’s judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote” (5/19/05).
“Let's get back to the way the Senate operated for over 200 years, up or down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate” (5/22/05).
2. John Cornyn (TX)
“[F]ilibusters of judicial nominations are uniquely offensive to our nation’s constitutional design” (6/4/03).
“[M]embers of this distinguished body have long and consistently obeyed an unwritten rule not to block the confirmation of judicial nominees by filibuster. But, this Senate tradition, this unwritten rule has now been broken and it is crucial that we find a way to ensure the rule won’t be broken in the future” (6/5/03).
3. Lamar Alexander (TN)
“If there is a Democratic President and I am in this body, and if he nominates a judge, I will never vote to deny a vote on that judge” (3/11/03).
“I would never filibuster any President's judicial nominee. Period” (6/9/05).
4. John McCain (AZ)
“I’ve always believed that [judicial nominees deserve yes-or-no votes]. There has to be extraordinary circumstances to vote against them. Elections have consequences” (6/18/13).
5. Chuck Grassley (IA)
“It would be a real constitutional crisis if we up the confirmation of judges from 51 to 60” (2/11/03).
“[W]e can’t find anywhere in the Constitution that says a supermajority is needed for confirmation” (5/8/05).
6. Saxby Chambliss (GA)
“I believe [filibustering judicial nominees] is in violation of the Constitution” (4/13/05).
7. Lindsey Graham (SC)
“I think filibustering judges will destroy the judiciary over time. I think it’s unconstitutional” (5/23/05).
8. Johnny Isakson (GA)
“I will vote to support a vote, up or down, on every nominee. Understanding that, were I in the minority party and the issues reversed, I would take exactly the same position because this document, our Constitution, does not equivocate” (5/19/05).
9. James Inhofe (OK)
“This outrageous grab for power by the Senate minority is wrong and contrary to our oath to support and defend the Constitution” (3/11/03).
10. Mike Crapo (ID)
“[T]he Constitution requires the Senate to hold up-or-down votes on all nominees” (5/25/05).
11 . Richard Shelby (AL)
“Why not allow the President to do his job of selecting judicial nominees and let us do our job in confirming or denying them? Principles of fairness call for it and the Constitution requires it” (11/12/03).
12. Orrin Hatch (UT)*
Filibustering judicial nominees is “unfair, dangerous, partisan, and unconstitutional” (1/12/05).
*Hatch claims he still opposes filibusters of judicial nominees and often votes “present” instead of “no” on cloture votes. But as Drew noted: “Because ending a filibuster requires 60 ‘yes’ votes, voting ‘present’ is identical to voting ‘no.’ Hatch’s decision to vote ‘present’ is an affirmative decision to continue the filibuster.”
Yesterday, the Senate Judiciary Committee voted along party lines to approve the nomination of Georgetown Law professor Cornelia “Nina” Pillard to the Court of Appeals for the District of Columbia, which is often considered to be the nation’s second-highest court. The party-line vote wasn’t exactly a surprise – Republicans have decided they don’t want President Obama to fill any of the D.C. Circuit’s three vacancies, so have voted against both nominees who have come before them so far – but the content of at least some GOP senators' objections to Pillard was notable.
Specifically, both Republican senators who chose to speak on their decision to vote against Pillard went out of their way to object to Pillard’s record on women’s equality.
Yes, the Republican “rebranding” effort is going so well that they are now threatening to hold up a judicial nominee because she believes that men and women should be equal in the eyes of the law and has been very successful in arguing that view in the courts.
Pillard has a long record of working with Republicans and Democrats to defend women’s equality: She worked with the Bush administration to successfully defend the Family and Medical Leave Act in the Supreme Court and crafted the arguments that convinced the Supreme Court to open the Virginia Military Institute to women (which earned her the respect of, among others, the head of the school who was at the time opposed to allowing women in).
She also has worked on women’s equality issues as an academic, including questioning abstinence-only education that presents a double standard to boys and girls…which is what has sent the far right into a fit.
At yesterday's committee vote on Pillard’s nomination, both Sen. Chuck Grassley (the ranking Republican on the committee) and Sen. Orrin Hatch lifted talking points from right-wing activists like the Family Research Council, Phyllis Schlafly and Ed Whelan of the National Review to attack the nominee’s academic writings on reproductive rights and abstinence education and to even, bizarrely, question whether she appreciates the “benefits of marriage.”
And then every single Republican on the committee voted against allowing her nomination to go to the full Senate for a vote.
To put this in context, Republican senators including Grassley and Hatch were quick to defend demand the confirmation of George W. Bush judicial nominees who made rape jokes and belonged to clubs that excluded women and espoused any number of offensive views, claiming that they could hold these personal views and still be fair judges. As PFAW's Drew Courtney wrote in the Huffington Post yesterday:
Too often we're told that judicial nominations fights are too complicated, too subtle to get major national attention. Not this time. The Republican message is crystal clear: rape-joke making, gay-bashing, abuse-defending, discrimination-supporting, law-skirting, ideology-pushing Republican men are welcome to be judges in our federal courts.
Women who expect to be treated as equals are not.
Sen. Orrin Hatch (R-UT) accused President Obama and Attorney General Eric Holder of acting like “despots” over the “outrageous” Justice Department decision to challenge new voter suppression efforts in Texas.
While the Supreme Court recently gutted a key enforcement of the Voting Rights Act, DoJ retains the right to ask a federal court to impose preclearance requirements on a particular state under Section 3 of the law, which the court’s ruling did not alter.
“He’s trying to reinstitute the Voting Rights Act in Texas; if I was a Texan I would be so doggone livid and mad about that I don’t think I’d ever get over it,” Hatch told NewsMax. “It just shows how this administration ignores the law; they act like they are tinpot despots.”
After arguing that the administration’s actions to protect voting rights are part of a plan to create permanent Democratic control, he claimed that Democratic-leaning states treat people of color the “like dirt”: “Some of the worst states are blue states where they treat minorities like dirt, don’t care of them, don’t do what’s right about them and frankly a lot of this liberal stuff comes out of those states.”
On ABC News’ “This Week” yesterday, Republican Sen. Orrin Hatch of Utah claimed that he takes the “principled position” of voting against filibusters of judicial nominees:
And matter of fact, I continue to vote against filibusters with regard to judicial nominations because I think it's a principled position. I actually think the president, whoever the president may be ought to have the full choice of who they put on the bench.
And unless there's just some overwhelming reason why somebody should never be on the bench.
But on many pivotal votes to break GOP filibusters of President Obama’s federal judicial nominees, Sen. Hatch hasn’t voted “against” the filibuster. Instead, he’s made a habit of voting “present” or not voting at all. Because a motion to break a filibuster requires 60 affirmative “yes” votes to succeed, not voting or voting “present” in effect supports the continuation of the filibuster.
Hatch voted “present” on efforts to break Republican filibusters of Obama judicial nominees Caitlin Halligan, Goodwin Liu, Jack McConnell and Robert Bacharach. He did not vote at all in cloture votes on nominee Andrew Hurwitz and in the second cloture vote on Halligan.
These votes allow Hatch to say he didn’t support a filibuster, while in fact voting to do just that. And he certainly didn’t take a “principled position” to vote “against” his Republican colleagues’ obstruction.
People For the American Way’s African American Ministers In Action, an alliance of 1,200 clergy from across the country, slammed immigration reform amendments offered by Senators Marco Rubio and Orrin Hatch yesterday that would deny health care coverage and other basic protections to immigrants and their children for five years after legalization.
African American Ministers in Action members Rev. Dorothy Chaney of Miami, Rev. Reginald Gundy of Jacksonville, Elder Lee Harris of Jacksonville and Minister Jabari Paul of Tallahassee issued a joint statement:
“When it comes to extending the social safety net to our immigrant neighbors, the moral thing to do is also the prudent thing to do. Denying health care coverage and basic protections to vulnerable families is bad for children and it’s bad for society as a whole.
“We need strong comprehensive immigration reform because vulnerable families are falling through the cracks, unable to start fully productive lives and give back to the country they call home. Our social safety net doesn’t only catch those who fall, it provides a springboard for those who need a leg up. The Rubio-Hatch amendments would relegate immigrants to continued second-class status even after they earn a legal place in the country.
“An immigration reform bill that punishes children and creates a second class status for those who have earned a path to citizenship undermines the goals of comprehensive reform.”
Last week, amid the Religious Right freak-out over the Obama administration's rule requiring health insurance plans to cover contraception, the Family Research Council hastily organized a webcast to rally the opposition called "Healthcare Mandate: Violating the Separation of Church and State."
Among the guests was Sen. Orrin Hatch who claimed that the issue was not about contraception but rather about abortion as he asserted that abortion constitutes 95% of what Planned Parenthood does as an organization:
If that sounds familiar, it is probably because Sen. John Kyl made the same claim last year. Kyl's claims was so thoroughly debunked as patently false [in reality, it is about 3%] that his office was reduced to laughably asserting that "his remark was not intended to be a factual statement."
Apparently Hatch missed that entire spectacle, or simply doesn't care, as he freely repeating the falsehood as FRC's Tony Perkins assured him that he was correct.
The Senate is currently debating the nomination of David Ogden to be Obama’s Deputy Attorney General. That, in itself, is telling. Ogden was expected to sail through the confirmation process, but by last week there was talk of a full-on filibuster.
It’s not easy to disrupt the confirmation of a widely respected attorney with previous government experience and bipartisan backing. It takes big lies and a big megaphone. But the Religious Right and its Senate allies managed just fine.
To hear Senator Orrin Hatch talk about it, you’d think that Obama had actually nominated Larry Flynt to be Eric Holder’s deputy: “The pornography industry is excited about Mr. Ogden’s nomination.”
But that’s nothing. Here’s how the executive director of the Traditional Values Coalition summed up Ogden: “He will be a great ally for advocates for death and homosexuality inside the Justice Department.”
Bear in mind, they’re talking about a man who enjoys the backing of the National District Attorneys Association, National Association of Police Officers, Fraternal Order of Police, National Center for Missing and Exploited Children, and many others. He even won the support of Republican Senators Specter, Graham, and Kyl in committee.
Ogden’s right-wing antagonists don’t care about any of that. They’ve latched onto a handful of cases involving abortion and obscenity from his many years as a corporate lawyer and have distorted them beyond all recognition. Ogden, for instance, represented the American Library Association in its fight against overzealous internet filtering and the American Council for the Blind over whether the Library of Congress should make a Braille version of Playboy, as was the practice for other popular periodicals.
These cases had very real First Amendment implications. But never mind that. His old casework is enough for the Traditional Values Coalition to call him a “pro-pornography zealot.” Concerned Women for America has even speculated that his nomination might mean that the “United States will also fund the international production and distribution of pornography.”
These smears reached hundreds of thousands – perhaps millions – of Americans via right-wing cable news, talk radio, and blogs. Senate conservatives took notice, hence the five ‘no’ votes in the committee and the grumbling about a filibuster. In fact, Senator Majority Leader Reid was forced to file cloture on the vote.
Ogden will surely be confirmed when the Senate finally votes on his nomination today (around 2 pm). But the outlandish rhetoric from the far right and the willingness by conservative Senators to play along are sure signs of what’s to come.