Personhood and Abolition
May 15, 2015

The Personhood Strategy in Light of Abolition

The personhood strategy was formulated as a result of the terms “person” and “personhood” being used by Justice Harry Andrew Blackmun in section 9 of his opinion in Roe v. Wade. [1]

Particular attention is paid to the wording in section 9A, which many claim is the Achilles heel in the Roe opinion that could be used to overturn the whole thing and make abortion illegal again.  Blackmun’s mentioning of personhood in this section, however, is not an open ended invitation to somehow prove that the human organism has attained the status of personhood and thus subvert the Roe opinion and all of its bloody consequences.  Neither is he suggesting that a vote of the people could overturn a Supreme Court decision – something we have learned through ample SCOTUS opinions that have resulted in thwarting not only the plain meaning of the Constitution, but the will of the people in enforcing the edicts of said document.

When Blackmun stated “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment”, he was merely preparing to make the case that there is no such proof to be found where justices seek to find it – neither in the Constitution, nor in prior decisions and case law.  His statements immediately following lay the groundwork for his reasoning as to why the unborn cannot be considered “persons”, constitutionally and legally speaking (which are the criteria courts seek in issuing their opinions).

Blackmun’s opening statement on the power of personhood is short lived, as he continues his discourse with an explanation as to why such is not the case.  

“But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”

He goes on to say,

“All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

With those statements he closes the door on any possibility of personhood winning in a court venue.

So to amend a state constitution post factum, especially via popular vote, and then expect it to trump Roe v. Wade ex post facto, in light of the court’s already decided upon status of the preborn as non-persons, does not seem to be an achievable pragmatic goal.  The pragmatics of this strategy grow even weaker when one considers that Planned Parenthood v. Casey and Doe v. Bolton both serve to bolster the defense of Roe, especially in light of the court’s infatuation with stare decisis. Add to that myriad state-level cases of a similar nature, and pro-life legislation that has actually codified abortion practices into our law system, and what we discover is a near impenetrable defense.

To make matters worse, many, if not most politicians submit personhood language with the proclamation that it will do nothing but lay the groundwork for making abortion illegal – once Roe v Wade is overturned.  How it is to be overturned they do not say. Missouri’s personhood legislation, HJR 98, provides us with a good example of this in action. Republican Jay Barnes, defending the amendment against the accusation that it might actually prevent women from procuring abortions, stated that the amendment could not ban anything permitted by the U.S. Constitution or Supreme Court, including abortion and birth control. He explains the purpose of the amendment by saying, “What that does is puts Missouri in a position that it’s the most pro-life state in the country as allowed by the federal Constitution through the holdings of the United States Supreme Court”. Read the Missouri news story here.

The creation and use of the concept of “personhood” by the Supreme Court’s Roe v. Wade opinion has become the means by which the powers and principalities that be have dehumanized and destroyed image-bearers of the living God in the womb. You cannot show that a human embryo possesses what Harry Blackmun called “personhood.” When are human beings “persons”? This condition of “personhood” is based on a human being meeting an arbitrary status that is conferred upon him or her by the state or court, nothing that can be concretely proven, scientifically or otherwise. When personhood is an arbitrary decision based on performance that can be put on a limitless sliding scale, then whomever is in power gets to decide who has “personhood”, and if they decide you don’t, then gone are any rights you may have otherwise claimed. You become no more important than cattle, and you can be killed with little or no remorse. Such has been the case time and again throughout human history.

While it admittedly sounded like a successful game plan to many of us who have been working with personhood campaigns for years, the personhood strategy has been found wanting.  It now relies on the enemy’s categories and definitions and requires the game be played on the humanist court’s playing field, where the end was already determined in the beginning by the court.  This makes it all but impossible to abolish abortion with personhood language.  To abolish abortion it would be far better to use the language of abolition.  An abolitionist measure lays a much stronger foundation for defying the courts, which will have to be done at some point, than a measure that uses the language of Roe to overturn Roe.

The best chance personhood has for success is through the interposition of lesser magistrates who would be willing to defy the courts and declare that abortion is already covered under the state’s murder statutes on the basis of the personhood of the unborn – and then act on that declaration. But arguing for the personhood status of the preborn, especially someone going through the zygote or blastocyst stage of growth, is an extremely hard sell in our culture, and not the most ideal ground to stand on where interposition against the federal government and tyrannical Supreme Court is concerned.  While arguing for the personhood status of the preborn may be a hard sell in our culture, arguing for their humanity gives one a more solid foundation from which to persuade and interpose.

When are pre-born human beings “humans”?  When does one reach the status of “human”? That humanity begins at conception can be proven both scientifically and biblically, so ascribing humanity to the preborn is easily achieved, but does not easily lend itself to judicial sophistry. Human rights, by very definition, must be bestowed based on whether or not one is human, and there is no lack of empirical evidence regarding one’s humanity.

So rather than standing on the murky proposition that our law or amendment confers personhood status to preborn humans, contra the multitude of court opinions already in existence, we gain tremendous advantage in simply proclaiming the undeniable fact of their humanity.  This provides the would-be interposer with a more concrete platform from which to interpose and a much needed boost of confidence to perform their duty of interposition.

Foregoing the humanist terminology that courts have been binding the nation with for decades, in favor of abolitionist language and measures, gives much rhetorical advantage as well.  It allows us to argue on our own terms and reject the categories that have been established by the enemy.  It frees us up to openly oppose Roe v. Wade altogether. Rather than attempting to thwart judicial tyranny with language that has set us up to fail, we openly oppose the entire thing. We challenge it to its very core.

Another benefit is the opportunity to educate people on the roll of the judiciary – discipling the nation. The judiciary was never meant to make laws. The Supreme Court doesn’t make laws, the Supreme Court doesn’t decide who is valuable and who is not valuable, and the Supreme Court doesn’t decide that people are allowed to murder each other. The Supreme Court, notwithstanding its name, is not the supreme human authority of the United States. The “supremacy clause” of the Constitution places the Constitution in authority over all the laws and treaties of the United States, and declares every judge in every state a servant to the U.S. Constitution (for a better understanding of the supremacy clause, read the article,  “The Not So Supreme Court”, located here). As Thomas Jefferson wrote to a friend who was proffering the idea of ‘judicial supremacy’, “You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He went on to write, “The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.”

The civil authorities should defy the courts when they hand down unjust and murderous opinions, not bend over backwards to comply with them. In this we can be rightly discipling the nation in the role and duties of civil magistrates in the face of injustice – instead of wrongly discipling the nation to comply with evil.

A personhood amendment might potentially do some of the things an abolitionist measure could do, depending on the language of the amendment and the backbone of the representatives pushing it, maybe even to the point of providing real consequences for the murder of the preborn.  But going beyond the strictly legal aspects, consider the stir that merely introducing an abolitionist measure would cause.  We could be having a national conversation about just what personhood means and whether or not the preborn can attain to that status, or we could be discussing abortion as murder of a human being.  A discussion like that has the potential to lay open the evil  intentions of the hearts of man and thus open up a clear path for the gospel to be presented and for conviction to take hold, and for many to come to repentance.

Which leads us to the biggest benefit, though, by far, in using abolitionist terminology, the clearing of the way for standing with Imago Dei – the image of God.  Switching the rhetoric from “personhood” to “human”, the “Imago Dei” – that is, human, created in the image of God, and from there to the Incarnation – that the Son of God became human, in the womb, that through death He might render powerless him who had the power of death, that is, the devil, and reconcile all of sinful humanity to Himself, to wipe away every tear from our eyes, and abolish death.

[1]For a comprehensive defense of this claim, see our post “A Thoughtful Critique of Personhood Strategy”

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The court in Akron v. Akron Center for reproductive health tied that “a State may not adopt one theory of when life begins to justify its regulation of abortions.”


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