I have a genuine question: Why have some states passed fetal personhood laws if not for this purpose?
The traditional argument is State rights, not that the unborn are persons for the purposes of the 14th.
~Max
States rights has nothing to do with fetal personhood.
What? Of course it does. The State argues that it - not the court - has the right (and duty) to decree that fetuses are persons, that it has the right and duty to protect persons from being deprived of life, and that the rights of the mother are not controlling.
The pro-life movement builds off that and says, it’s not good to let the States (or the court) decide who is or is not a person, let’s have it put into the Constitution that personhood begins with conception (or whatever).
Two-step plan for world domination.
~Max
This is essentially my question for @UltraVires – why make these laws if not to make a 14th Amendment claim?
I tried to explain it rather inarticulately. Roe held that a fetus is not a person under the 14th Amendment, therefore the mother has rights which are paramount to such an entity.
State X wants to ban abortion and hires a crafty attorney to see if there is a way to ban abortion. This attorney reads Roe and say, ah, if we define under our state law or state constitution that a fetus is a person, then our state has the interest that the Court said was not present WRT to protecting fetuses.
So we pass restrictive abortion laws and say that while the Roe court undervalued the fetal interest under the 14th Amendment, they did not consider the powerful interest we have in protecting fetuses under state law, so reconsider Roe under our new test.
Spoiler alert: It didn’t work. But, it remains part of Roe. So if states still believe that the more rights they give to the fetus, the stronger argument they have to pass anti-abortion laws.
But as John Hart Ely noted in his criticism of Roe, the whole person/not a person debate is a red herring and shouldn’t have had so much meaning. A dog is not a person, but cruelty to a dog is against the law. Nothing says that something has to be a person to be protected in law.
Take two.
The State argues that it - not the court - has a Tenth Amendment power to decide whether fetuses are persons, and that it has a compelling interest in protecting the lives of persons.
The mother makes the 14th Amendment claim - that much is unavoidable. The State is countering that claim.
~Max
I can put a dog down whenever I want. I can’t do it cruelly, but I’m allowed to have it killed, essentially at my whim.
If a state successfully argues that a fetus has 14th Amendment protections, that could be used to ban abortion nationwide. That’s why I think the personhood laws have been passed.
It wouldn’t be a nationwide ban if the State reserves for itself the right to decide whether fetuses are persons or should be protected. You might have Texas say fetuses are persons and New York say they aren’t.
~Max
The Republican Party platform states: “. . . we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.”
The clear reading is that the Republican Party believes that current abortion jurisprudence is in grave error. While they support an amendment to “make clear” that the unborn have 14th Amendment rights, their position is that fetuses already have such rights under the Constitution. The need to bringing the judiciary in line with the true meaning of the Constitution is an obvious implication of such a position.
I’ll concede that I overstepped in saying this was an “explicit position” of the platform.
Then we would get into the whole argument similar to what we had when different states recognized same sex marriage and others didn’t. Full Faith and Credit. Privileges and Immunities and so forth. An unborn child, recognized as a person by the State of Texas (hypothetically) with all of the same rights as you and me is stripped of all protections because its mother carries it in utero to New York which (hypothetically) grants it no protections at all?
Could TX charge the mother with kidnapping? The answers are not obvious.
ETA: If the mother smokes during pregnancy, would that be considered the same as handing your 5 year old a lit Camel?
Stripped of State protection of their rights under State law. Alaska guarantees 17 year-olds within its jurisdiction the right to vote in primaries, if they would turn 18 in time for the general election. Such a minor child who moves to Oregon loses that guarantee.
~Max
People seeking legal abortions have traveled to Oklahoma, New Mexico, Colorado, Kansas, Arkansas and Louisiana, according to reporting by the Dallas Morning News.
[A]bortion rights advocates expected the number of procedures to drop even more than it did. They’ve for months predicted that Texas’ new law, which outlaws abortions at about six weeks when fetal cardiac activity is detected, would cut down the procedure by 85%.
Appointment wait times indicate Texans are straining capacity at out-of-state facilities.
Texas’ neighboring states of Arkansas, Louisiana, New Mexico, and Oklahoma have approximately half the number of abortion facilities, combined, and provide about one-third the number of abortions per year compared to Texas.
And the bill’s sponsors are reading all this and clapping themselves on the back saying, “Job well done.”