History of the
Human Life Amendments
From 1973 to the present day
The first ten years after roe v wade
OPTION 1
Return the question of abortion
to state and federal legislators
- 1973 Whitehurst Amendment
“SECTION 1. Nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion.”
- 1975 Noonan Amendment
“The Congress within Federal jurisdiction and the several States within their jurisdictions shall have power to protect life including the unborn at every stage of biological development irrespective of age, health, or condition of physical dependency.”
- 1981 Hatch Amendment
“A right to abortion is not secured by this Constitution. The Congress and the several States shall have the concurrent power to restrict and prohibit abortions: Provided, That a law of a State which is more restrictive than a law of Congress shall govern.”
Pros and Cons
Recognizing the power of the state and federal governments to regulate abortion would be a step forward from the status quo created by Roe v Wade. However, on its own, this option does not secure the right to life of a single human being. In many ways this approach is reminiscent of the pre-civil war Kansas Nebraska Act, where the liberty of an entire race of people was sought to be put to a state by state vote. Fundamental rights, such as the right to life, cannot be allowed to vary from one state to another, therefore this option is not recommended.
OPTION 2
Overturn Roe v. Wade
Simply eliminate the "right" to
abortion from the constitution
- 1983 Hatch-Eagleton
“A right to abortion is not secured by this Constitution.”
Pros and Cons
This approach is very similar to the previous option of returning the regulation of abortion to the legislative branches. The simplicity of the language along with the lack of affirmative language that could be interpreted as recognizing a right to some abortions is an improvement. However, this type of amendment does nothing to affirmatively guarantee the right to life of a single human being.
OPTION 3
Restore the personhood of the preborn
- 1973 Hogan Amendment
“SECTION 1. Neither the United States nor any State shall deprive any human being, from the moment of conception, of life without due process of law; nor deny to any human being, from the moment of conception, within its jurisdiction, the equal protection of the laws.
SECTION 2. Neither the United States nor any State shall deprive any human being of life on account of illness, age, or incapacity.
SECTION 3. Congress and the several States shall have the power to enforce this article by appropriate legislation.”
- 1973 Buckley Amendment
“SECTION 1. With respect to the right to life, the word ‘person’, as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.
SECTION 2. This article shall not apply in an emergency when a reasonable medical certainty exists that continuation of the pregnancy will cause the death of the mother.
SECTION 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.”
- 1975 Helms Amendment
“SECTION 1. With respect to the right to life guaranteed in this Constitution, every human being, subject to the jurisdiction of the United States, or of any State, shall be deemed, from the moment of fertilization, to be a person and entitled to the right to life.
SECTION 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
Pros and Cons
Roe v. Wade made two fundamental changes to our constitution. The first is that it created a specific right to abortion under the general right to privacy. Never before had abortion been recognized as a constitutional right. The second fundamental change was that the child in the womb was dehumanized by a legal slight of hand. The court disingenuously ruled that the beginning of life is a relative concept; at the same time, the court held that the preborn child can not be considered a person. This ensured that the mother's so called right to an abortion would always win the day against the child in the womb.
By recognizing the child in the womb as a person under the law, the Personhood constitutional amendments would essentially be recognizing the child's right to have rights, specifically the right to life.
The are some important differences among the three amendments. For example, the Buckley Amendment includes an exception for situations when the life of the pregnant mother is in danger. This exception is unnecessary because direct abortion is NEVER necessary to save the life of the mother.
Other differences among the amendments are the use of the word conception vs. fertilization vs. every stage of their biological development. These definitional considerations are important. For example, the word conception has been unscientifically distorted to mean implantation in order to make acceptable the killing of human beings before implantation.
A critique of the Personhood Amendments is that they would not apply to private actions because it would define the child in the womb to be a person under the 5th and 14th amendments. Because these amendments only apply to state actors, the argument is that children in the womb would not be granted protection from assaults on their right to life by private parties. However, there is ample precedent that a state must not just refrain from attacks on our basic liberties, but also must guarantee some level of equal protection of the law. For example, a state could not legalize the murder of a class of people without violating the requirement to provide for the equal protection of the law.
OPTION 4
Specifically prohibit abortion
- 1974 Charles Rice/Roncallo Amendment
“SECTION 1. Abortion is hereby prohibited within the United States and all territory subject to the jurisdiction thereof. As used in this article, abortion means the intentional destruction of unborn human life, which life begins at the moment of fertilization. “SECTION 2. Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
Pros and Cons
The Charles Rice/Roncallo Amendment prohibits all intentional abortion and it applies to private parties as well as to state actors. The prohibition of intentional killing applies from the moment of fertilization and thus avoids the confusion created by the redefinition of the term "conception."
The Amendment has been criticized for being vague and for not including an explicit life of the mother exception. The vagueness argument is not valid as neither the detail nor the level of preciseness appropriate to a criminal code are appropriate to a constitutional amendment. The lack of a life of the mother exception is also invalid, since it is an established medical fact that a direct, intentional killing of the child is never necessary to treat a pregnant mother.
OPTION 5
The paramount human life amendment
- 1979 Paramount HLA/Mazzoli Amendment
“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.”
Pros and Cons
The paramount Human Life Amendment is intended to guarantee the general principle that the courts must protect and prioritize the right to life above all others. It overturns the preeminence currently given to the the so called right to abortion over the right to life of the child.
This type of amendment has been criticized for failing to explicitly restore personhood to the preborn under the 5th and 14th amendment and from specifically outlawing abortions. It also does not resolve the pro-abortion argument that disingenuously pits the right to life of the mother against the right to life of the child in the cases of so called therapeutic abortions.
OPTION 6
Combination Human Life Amendment
- 1973 Burke Amendment
“SECTION 1. With respect to the right to life, the word ‘person,’ as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States, applies to all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function, or condition of dependency.
SECTION 2. No abortion shall be performed by any person except under and in conformance with law permitting an abortion to be performed only in an emergency when a reasonable medical certainty exists that continuation of pregnancy will cause the death of the mother and requiring that person to make every reasonable effort, in keeping with good medical practice, to preserve the life of her unborn offspring.
SECTION 3. Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.”
- 1975 Buckley/NRLC Amendment
“SECTION 1. With respect to the right to life, the word person as used in this article and in this article and in the fifth and fourteenth Articles of Amendment to the Constitution of the United States 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.
SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.
SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation within their respective jurisdictions.”
- 1981 NRLC Unity Amendment
"SECTION 1. The right to life is the paramount and most fundamental right of a person.
SECTION 2. With respect to the right to life guaranteed to persons by the fifth and fourteenth articles of amendment to the Constitution, the word `person' 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 including fertilization.
SECTION 3. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law allowing justification to be shown for only those medical procedures required 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.
SECTION 4. Congress and the several States shall have the power to enforce this article by appropriate legislation.”
Pros and Cons
The combination Human Life Amendments seek to combine the strengths of each individual approach while minimizing their weaknesses.
All three include personhood provisions, prohibitions of private actions, and concurrent jurisdiction provisions authorizing the state and federal governments to enforce the amendments.
Some of the differences include the specific mention of abortion, the use of the word fertilization, and the presence of the paramount right to life language.
An important point of difference is also the language used to deal with situations where a pregnant mother requires life saving treatment. The Burke Amendment carves out a specific exception where abortion is permitted, while the Buckley/NRLC amendment more broadly authorizes procedures required to prevent the death of the mother. The NRLC Unity Amendment contains the most nuanced language on this point because it would permit treatment for a sick pregnant mother without the dehumanization of her child.
One potential negative aspect of the combination Amendments is that they are more lengthy and are more difficult to communicate.
How far did these Amendments get?
