In 2012, history repeats itself as the simple task of fact-finding is proving too difficult for many media commentators when it comes to explaining the GOP platform. As the GOP prepares to vote on their 2012 Republican Platform during the convention in Tampa, where the language will be finalized, the media has been abuzz with erroneous statements regarding the Platform’s support for a human life amendment and the implications of such an amendment for the current law of the land. An op-ed piece from 1996 proves almost prophetic in its ability to decipher the flawed arguments of today.
To be clear U.S. law through Roe v. Wade allows abortion on-demand throughout all nine months of pregnancy for any reason, and at any time. This puts the U.S., along with North Korea, China and Canada, on the fringe of abortion-policy, as most of the 195 nations in the world limit abortion after viability.
A couple points are worth highlighting:
Just as the media in 1996 erroneously referred to a non-existent “constitutional amendment that would ban abortion” plank, reporters over the last week have repeatedly said that the GOP Platform is calling for a constitutional ban on abortion—a statement found nowhere in the text of the 2012 Platform.
What the 2012 Republican Platform actually says regarding a constitutional amendment is:
“We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.”
Media analysts have extrapolated that this plank of the Platform to say it would “outlaw abortion,” or “ban abortion with no exceptions.” Once again, “never quoting the text, many have been content to refer to the plank as calling for a constitutional amendment that would ‘ban’ abortion.”
This was “legal nonsense” in 1996, and it remains so 16 years later.
First, this plank (which has been included in the Republican Platform since 1976 with minor changes) simply states that the party supports a human life amendment. Notably, the actual text of such a human life amendment is unknown. Based on the rest of the Platform’s language, however, it is safe to assume the Platform supports a constitutional amendment that establishes the unborn child to be a “person” protected by the 14th Amendment.
If anyone had bothered to consult principles of constitutional law, perhaps they would recognize that such an amendment alone would not—indeed could not—“ban abortion” because:
- An amendment giving unborn children protection under the 14th Amendment would only dictate state action—not individual and private actions.
- Constitutional amendments are not criminal codes—they do not act to proscribe criminal conduct.
- Constitutional amendments require enabling legislation at the federal or state level to implement any kind of enforcement at the state or local level.
Notably, a constitutional amendment has to be passed by three-fourths of the states.
In summary, the press was wrong in 1996 and they are wrong today. At a minimum, good reporting requires accuracy. The media would do well to at least read the text and consult a lawyer before alleging that statements ban practices they don’t.
Clarke Forsythe is Senior Counsel at Americans United for Life Action and a well-known legal scholar and published author on Constitutional and abortion-related law. Kellie Fiedorek is staff counsel at Americans United for Life Action, and advocated for pro-life language during the GOP Platform debates.
The Missing Abortion Amendment, by Clarke D. Forsythe
Published in The Wall Street Journal, Thursday, May 9, 1996
With the appointment last week of House Judiciary Committee Chairman Henry Hyde (R-IL) as chairman of the Platform Committee at the Republican National Convention, and announcements by Govs. Pete Wilson, Christine Whitman, George Pataki and Bill Weld that they will seek to repeal the Republican Party plank on abortion, it might be good to read the past platform language just once, before the media hullabaloo leading to the convention drowns out the facts.
The plank that the media keep referring to—the plank containing “a constitutional amendment that would ban abortion”—is nowhere to be found. Every Republican Party platform since 1976, with only minor modifications over the years, has contained a plank declaring the unborn child to be a person.
Never quoting the text, the media have been content to refer to the plank as calling for a constitutional amendment that would “ban” abortion. This is legal nonsense.
The plank supports a “human life amendment,” without specifying any particular language. This is critical, because a number of very different amendments on abortion were considered by Congress in the late 1970s and early 1980s. These included the Hatch Amendment (also called the Hatch Federalism Amendment or Hatch Human Life Amendment), the Federal Rights Amendment, the Federalism Amendment, and the Eagleton Amendment. All of these have been referred to, from time to time, as the “human life amendments,” but their effects would be very different. Some would merely return the abortion issue to the states, while others would extend constitutional rights to the unborn. Yet, all were referred to as “human life amendments.”
Given the language of the entire Republican, plank, however, the reference to “a human life amendment” can reasonably be taken to support a constitutional amendment that establishes the unborn child to be a “person” protected by the 14th Amendment.
What would be the effect of such an amendment? Because the 14th Amendment forbids the states to deprive persons of life, liberty, or property without due process of law, an amendment that granted unborn children the protections of the 14th Amendment would forbid “state action” that deprives the unborn of life, liberty or property without due process of law. It would forbid states and state officials from discriminating against the unborn by, for example, promoting liberalized abortion laws.
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The limitations of such an amendment can be seen in the Supreme Court’s 1989 decision in DeShaney v. Winnebago County. Winnebago County, Wisc., was sued when county officials failed to protect an infant from his abusive father. The Supreme Court held that “a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” Chief Justice William Rehnquist elaborated that the extent to which the state must protect persons from other persons was a matter the Framers “were content to leave . . . to the democratic political process.”
The claim that a personhood amendment would “ban abortion” therefore ignores fundamental principles of constitutional law. A constitutional amendment is not a criminal code; it does not act to proscribe criminal conduct. An amendment that gave unborn children the protections of the 14th Amendment would not touch individual conduct, only state action. States don’t usually commit abortions; individual abortionists do.
Likewise, a constitutional amendment is not self-enforcing. An amendment would need enabling legislation at the federal or state level to effectively touch individual conduct. Its effective enforcement would depend on adoption of state or local criminal legislation. A human life amendment might empower legislators to act against individual conduct, but would not require them to do so.
By comparison, the passage of the 14th Amendment prohibited state discrimination against black Americans, but it did nothing to touch individual criminal action, like lynching. Consequently, the NAACP spent the early decades of this century fighting for a federal anti-lynching law.
These same principles show why the claim of some that such an amendment would require “criminalizing women’s participation in abortion” is a canard. Because the amendment would only affect state action, leaving private action to state legislation, the contingent factors that go into effective law enforcement would be left to the states. Thus, a “human life amendment” would allow the states to adopt the very same enforcement policy that the states uniformly adopted for the 100 years leading up to the Supreme Court’s 1973 decision legalizing abortion on demand—targeting abortionists and treating the woman as the second victim of abortion, along with the unborn child. But, of course, this history is conveniently ignored.
At a time when political commentators say they want politicians to articulate vision and set future goals, it’s ironic to hear the attack from “pragmatists” that the Republican plank is “not immediately achievable.” Admittedly, it’s a goal. It signifies a vision derived from the doctrine of unalienable rights proclaimed in the Declaration of Independence: that every human being—including every unborn child—be protected as a person against discriminatory state action that would threaten the right to life.
Republicans who are uneasy with the plank ought to consider its profoundly democratic nature. Our current national policy of abortion on demand was imposed by judicial fiat and has engulfed the country in a 20-year culture war with no end in sight. The plank, by stark contrast, is profoundly democratic. Constitutional amendments must be passed by three fourths of the states. By supporting an amendment, the plank says that the GOP will go to the American people to create a national consensus that will support an amendment that protects the unborn child as a person. No consensus, no amendment.
When some Republicans say the public won’t support an amendment today, the plank says that the party will go to the people and try to persuade them otherwise. It’s hard to imagine how Republican officials, or voters In Middle America, would be scared by such a democratic proposal.
LifeNews Note: Clarke Forsythe and Kellie Fiedorek are attorneys for Americans United for Life, where this column originally appeared.
 From the Republican Party’s 1992 platform on abortion: We believe the unborn child has a fundamental individual right to life which can not be infringed. We therefore reaffirm our support for a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children. We oppose using public revenues for abortion and will not fund organizations which advocate it. We commend those who provide alternatives to abortion by meeting the needs of mothers and offering adoption services. We reaffirm our support for appointment of judges who respect traditional family values and the sanctity of innocent human life.