Personhood is Right for Wisconsin, Part II: Why Wisconsin Right-to-Life’s Public Campaign Against Personhood is Deeply Flawed

If you have not read my introduction to the Wisconsin Personhood initiative, please read that first.

This post deals with Wisconsin Right-to-Life’s public claims about Personhood.  For a discussion of the (substantially different) arguments employed by its legal white paper, please see the later posts in this series.

Barb Lyons, director of Wisconsin Right-to-Life. 
Winner of the NRLC’s annual kindly-lookingness award in 2001, 2004, and 2006-2009 inclusive. 

I want to lead this post off by noting, for the record, that we are all allies in the pro-life movement, and that Wisconsin Right-to-Life is emphatically a part of that movement.  The organization has, in many cases, led the battle against abortion in Wisconsin, and has some very significant victories in its cap, including the Supreme Court milestone FEC v. Wisconsin Right-to-Life.  I have it on good authority that the organization remains committed to the eradication of abortion in Wisconsin, without exception, without apology (for there can be no apology in protecting the innocent).  Even if I didn’t have an friend in the organization who can speak for WRtL, the organization’s record speaks for itself.

I want to make the same statement about Jim Bopp, who will be mentioned frequently in my next post, because WRtL cited him to me as the lead author of their legal white paper on Personhood.  I am young, and missed the pro-life battles of the 1980s, but I’m told that Mr. Bopp was there, crusading for the pro-life movement, always finding a novel way to advance a difficult cause – no matter how humbling the strategy. I know that he himself has worked on model legislation that would have enacted Personhood at the federal level, so he can hardly be counted an enemy of the Personhood movement. That landmark Supreme Court decision I mentioned above?  Bopp was the lawyer who represented Wisconsin Right-to-Life in its free speech case against the FEC. Today, he mainly shows up in my mail in connection with the many clients – including the Susan B. Anthony List – whom he is defending against rapacious lawsuits by the vanguard of abortion.

So I ask all my readers to understand that, while I have sometimes become angry while researching this series, the following post is written in a tone of bafflement, not accusation.  These are not Pro-Lifers In Name Only.  Indeed, they are more than friends: the rest of us, especially the young who have not yet struck many blows for the cause, are manifestly in their debt.

However, the reasons they have articulated for opposing Wisconsin Personhood are not merely strange – they are highly questionable and deeply troubling.  As I described in my last post, after reading the reasons against Personhood posted on WRtL’s website, I had a lot of questions, and, eventually, WRtL sent me its full legal white paper allegedly justifying its anti-personhood position.  I do not believe that it does, but I’ll get there in my next post.

Before I go through the white paper, I wish to make quick work of the Personhood information displayed on Wisconsin Right-to-Life’s website.  Some of this information is grossly misleading, bearing faint resemblance to the arguments made in the organization’s legal white paper. Overall, it represents a profound disservice to the pro-life public Wisconsin Right-to-Life serves.  By greatly exaggerating the risks of a Personhood Amendment, Wisconsin Right-to-Life makes it impossible for the individual pro-lifer to make a fair judgement about the initiative.  The website begins by claiming:

1. A Personhood Amendment would cancel out our current abortion ban.  Wisconsin is fortunate to be one of only a handful of states which already has a law that prohibits abortion… Once Roe v. Wade is overturned, this law would immediately go into effect and protect unborn children by shutting down abortion clinics. A personhood amendment would be harmful because it would make this law that prohibits abortion invalid.

The italicized portion is an absurd exaggeration of the very cautious opinion Wisconsin Right-to-Life’s lawyers actually put forward in their white paper:

A defendant seeking to assert this position in a criminal prosecution under § 940.04 would face serious standing issues… To be sure, their argument would confront a formidable substantive objection… [The argument] might fail – but it might succeed. Its prospects for success are certainly not trivial.

As we will discuss later on, even the white paper’s cautious opinion that Personhood poses a threat to Wisconsin’s existing abortion law is considerably overstated.  However, even if we accept the white paper’s opinion, there is a yawning abyss of doubt between the lawyers’ claim, “Its propsects for success are certainly not trivial” and the claim of certainty WRtL presents to the public, “[Personhood] would make this law that prohibits abortions invalid.” Next:

2. A Personhood Amendment would not protect Wisconsin’s unborn children… [W]ithout passing an entirely new law that prohibits abortion, a constitutional amendment in and of itself would not stop a single abortion.  Some people mistakenly believe that existing laws on homicide and manslaughter would cover abortion following passage of a personhood amendment.  However, these laws were not written with the unique medical situations which apply to abortion [sic].

We will discuss in Part IV the “mistaken” belief that homicide and manslaughter laws could cover abortion in a post-personhood world.  Let it suffice to say that abortion being covered by homicide and manslaughter laws is more likely than the nightmare scenario WRtL proposed in paragraph one.  Much of the rest of paragraph two is actually just a restatement of paragraph one, so I have omitted it.

However, I must point out that the sentence about “unique medical situations” is, legally speaking, gibberish, too vague for WRtL’s meaning to be remotely comprehended.  One interpretation of this passage – perhaps the only possible interpretation – is that Wisconsin Right-to-Life is endorsing a life-of-the-mother exception to anti-abortion laws, like the one contained in the state’s imperfect existing abortion statute, Section 940.04.  The pro-life movement, as a whole, does need to sit down and have a conversation with itself about life-of-the-mother exceptions, because there’s a lot of disagreement about whether and how they should operate.  However, if that’s what this passage is about, then Wisconsin Right-to-Life is no longer doing a legal analysis about why Personhood is dangerous for unborn babies – it is instead announcing WRtL’s private belief that some unborn babies should not be fully protected by the law.  The assertion is certainly unsupported by anything in the white paper, which has no mention of “unique medical situations,” and many of those who look to Wisconsin Right-to-Life for guidance would be outraged to learn that they had been misled into supporting a life-of-the-mother exception.

Perhaps there is some other way of interepreting this passage.  I am open to enlightenment from WRtL or anyone who wants to post in the comment box at bottom.  For now, moving on:

3. The cost of enacting a Wisconsin Personhood Amendment would be in the millions of dollars. Wisconsin Right to Life estimates it would cost at least $4 million or more to win a ballot measure.

This is not a legal issue, so it is not discussed at any length in the white paper.  It may well be true.  However, if Wisconsin Right-to-Life is worried about wasting its limited resources on an expensive measure, it doesn’t have to lift a finger.  But, rather than getting out of Personhood’s way and letting its supporters decide what pro-life causes to support, Wisconsin Right-to-Life is spending significant sums of money (at least thousands of dollars) fighting against Personhood!  If Personhood is a doomed enterprise, WRtL should let Planned Parenthood’s massive fundraising organization spend its own money killing it – not waste pro-life resources doing PP’s dirty work!

4. Attorney’s fees would be awarded to Planned Parenthood.  Should a personhood amendment succeed, expert national and state legal authorities who advise Wisconsin Right to Life believe it would be challenged in court and struck down.   Organizations like Planned Parenthood who would challenge the amendment would be awarded thousands of taxpayer dollars in legal fees.

This is also a considerable exaggeration of the white paper.  The white paper goes through two pages walking through many reasons why it is not likely that Personhood opponents could even launch, much less succeed, at a Personhood challenge in federal court.  Eventually, it reaches this conclusion: “The challenge hypothesized would face an uphill fight, but it would be neither frivolous nor hopeless.”

This is even worse than what we saw in paragraph one.  There, WRtL merely grossly exaggerated what its lawyers concluded. Here, WRtL is taking what its lawyers explicitly label unlikely and declaring that it will certainly happen. It then cites the authority of the very lawyers who refused to commit to such an extreme claim.

It is possible that attorney’s fees could be awarded to Planned Parenthood.  As we will see, I agree with the white paper’s conclusion on this point: it would be an uphill fight for the abortion industry, but it would not be hopeless.  This is a risk that is well worth considering before backing Personhood. But Personhood is simply, factually, not the slam dunk for Planned Parenthood that Wisconsin Right-to-Life claims it is – and Wisconsin Right-to-Life’s lawyers agree with me!

Incidentally, I feel compelled to inject a bit of unsourced, digressionary personal opinion here: when pro-abortion lawyers go to war, they bring Planned Parenthood’s entire billion-dollar baby-smashing machine with them… not to mention the ACLU’s $100 million, the NOW’s few millions – heck, Planned Parenthood makes some $3 million a year just from doing abortions in Wisconsin alone (overall, its Wisconsin clinics rake in $15.7 million, according to its 2009 IRS form 990).  Given the already deep pockets of our enemy, I do not think that the threat of a bad judge putting another few hundred grand in the abortion machine’s pockets would be a crippling blow to the pro-life movement in Wisconsin.  Since the probability of that happening is not high, I consider this an acceptable risk.  The individual pro-lifer will have to make up his or her own mind, and might decide that I’m wrong – but it’s important that that decision is based on good information, which is not available on Wisconsin Right-to-Life’s website.

And, no, “digressionary” is not a word.

In my next post in this series, I will examine the actual claims made by Wisconsin Right-to-Life’s lawyers, led by Mr. Bopp.  Their claims are far less outrageous than those posted on WRtL’s website, but remain baffling in several places, as I will discuss therein.

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