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August 15, 2012 7:21 AM Paul Ryan, the Fourteenth Amendment, and “Personhood”

By Mark Kleiman

With more and more smart, honest conservatives getting fed up and switching sides, the remaining smart, honest conservatives are especially precious for those of us who don’t want to talk only to members of the Blue team. So Ramesh Ponnuru is a scarce resource, and I wouldn’t criticize him if I didn’t have to.

But I’m utterly puzzled by Ramesh’s criticism of Amy Odell and his followup criticism of Kevin Drum over the proposed Sanctity of Life Act, a Congressional “personhood” bill sponsored by a 55 extremists, including Paul Ryan.

Ramesh’s position is that the bill wouldn’t criminalize abortion. He accuses Kevin, who disagrees, of bad lawyering.

Well, I’m not a lawyer at all, but (as Sam Ervin once said) I understand the English language; it’s my mother tongue.

The full text of the bill is at the jump. The substance of it is that Congress, acting explicitly under its power “to enforce, by appropriate legislation,” the provisions of the Fourteenth Amendment, declares that every fertilized egg is a person, with all the legal rights of a person, including the “right to life.”

Now, what does the rest of the Fourteenth Amendment say? Why, it says, among other things, that “no state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

So, for example, a law forbidding the murder of white people only, leaving blacks unprotected, would be void as denying equal protection.

Assume for the moment that the law were to pass both Houses, that President Romney were to sign it, and that the Supreme Court’s Right-to-Life caucus were to get a fifth vote to hold that the law was constitutional.

Then no state could criminalize the killing of the “post-born” without also criminalizing the killing of the “pre-born,” any more than it could criminalize the murder of whites while permitting that of blacks. (That’s what makes “Dred Scott” a RTL dog-whistle, valid even in Confederate territory.)

Thus, unless a state wanted to declare open season on all of its citizens, it would have to criminalize abortion, and do so without any exceptions whatever: not rape, not the life of the mother, not nothing. I suppose you could run an IVF clinic, but you’d have to keep every fertilized egg alive indefinitely; it would be a person in law, and disposing of it would be murder.

So when the bill goes on to provide that “the Congress, each State, the District of Columbia, and all United States territories have the authority to protect the lives of all human beings residing in its respective jurisdictions,” “authority” really means “obligation.” Buzzfeed backed off on the original claim, but it seems to me they were wrong to do so.

So yes: Mitt Romney, who said in an unguarded moment that he’d be “delighted” to sign a bill banning “all abortion,” has chosen as his running-mate a Congressman who co-sponsored a bill to do precisely that.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.
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Comments

  • Crissa on August 16, 2012 1:55 AM:

    Actually, it's worse than that:

    What about the life, liberty, or property of the person who contains the fertilized egg?