Policy Paper 2011-2012 Legislative Session
Question & Answer
PERSONHOOD OF THE PREBORN IN WISCONSIN:
A PROTECTIVE CONSTITUTIONAL AMENDMENT
What is the purpose of a personhood amendment to the Wisconsin Constitution?
Pro-Life Wisconsin's proposed personhood amendment is not intended, or worded, as a challenge to Roe v. Wade, or as an attempt to define personhood under the 14th Amendment to the United States Constitution. It seeks only to bring into the Wisconsin Constitution a true definition of human life as endorsed by Wisconsin citizens speaking through the amendment process. Such a definition is indispensible to spreading the protective cover of Wisconsin's constitution over all its citizens. We recognize that its protections cannot be fully effective as long as Roe remains law, but we believe a proper definition of personhood should be in place should Wisconsin be freed from the effects of that noxious decision.
Why is a constitutional amendment, rather than a statutory change, necessary?
We know that Wisconsinites, born and preborn, deserve total and permanent legal protection of their right to life - an inalienable right grounded in natural law. Why, specifically, is a constitutional amendment necessary?
From a pro-life perspective, the Wisconsin Constitution contains a glaring error at its outset - it leaves out the preborn. It applies rights to only those people who are "born." An activist Wisconsin Supreme Court could someday use this provision to deny the right to life of the preborn by interpreting an independent right to abortion in our state constitution. In so doing, the court could nullify any present or future pro-life laws in our state. The changing makeup of the Wisconsin Legislature could also jeopardize any pro-life laws in our state. Every two years our state election process determines the majority party in Madison. Legal protection of the preborn should not (and must not) be contingent upon which party controls the state legislature.
The right to life should not be subject to the whims of a politicized supreme court or an ever-changing legislature. Only by enshrining the right to life in our state constitution will preborn children be afforded full and lasting legal protection.
Would a personhood constitutional amendment negatively impact Wisconsin's pre-Roe abortion statute?
The proposed constitutional amendment is not a risk to our current, pre-Roe law (Section 940.04, Wisconsin Statutes) by "implied repeal" or otherwise. The concern that 940.04 would be impliedly repealed by the personhood amendment is alleviated by case law. For recent law on the subject pertaining to a later constitutional amendment, State of Wisconsin v. Phillip Cole, 2003 WI 112, 264 Wis.2d 520, 665 N.W.2d 328, is instructive. The Court said in that case that it did not matter whether a statute predated or postdated a constitutional amendment in deciding the issue of the statute's constitutionality. It found that an old statute restricting concealed carry was not repealed by a later amendment to the Wisconsin Constitution guaranteeing the right to keep and bear arms. Accordingly, concerns over 940.04 should not stand in the way of supporting our personhood amendment.
Would Wisconsin's pre-Roe abortion statute be effective in re-criminalizing abortion in our state should Roe be overturned?
Should Roe v. Wade be overturned and the abortion issue remanded to the states, it is essential that Wisconsin law protect all human life from the moment of fertilization. Wisconsin Statutes 940.04 is marred by an obvious loophole - a "life of the mother" exception. Many abortionists believe that the very condition of pregnancy itself is a life threatening condition. Consequently, a life of the mother exception can be and is used as a massive statutory loophole through which to drive abortion on demand at all stages of human life and in all circumstances.