Tuesday, October 18, 2005

Miers and the Human Life Amendment

Just when you thought you had a handle on the Miers nomination, a document emerged today from her thin dossier that could change the dynamics dramatically. Senate sources released material from a routine questionnaire answered by the nominee, disclosing that as a candidate for Dallas City Council in 1989, Miers informed the local branch of Phyllis Schlafly's Eagle Forum that she supported the so-called Human Life Amendment, a constitutional amendment that would endow human embryos with the full protections of "personhood" accorded by every other provision of the constitution, from the moment of conception.

The White House quickly issued a statement downplaying the disclosure: "A candidate taking a political position in the course of a campaign is different from the role of a judge making a ruling in the judicial process."

Well, yeah, sorta kinda, but not really, and so what? Yes, it's theoretically possible to believe that Roe v. Wade is a settled judicial precedent that should be, and can only be, reversed by a constitutional amendment. But let's remember what the Human Life Amendment (in its most common iterations) was designed to do: not simply reverse Roe and return the subject of abortion to the states and to Congress, but instead to permanently ban any federal or state legislation permitting abortion at any stage of pregnancy after conception (with the sole exception of conditions threatening the life of the mother).

Arguably, the Human Life Amendment would create a constitutional challenge to laws allowing the dispensation of contraceptives that prevent implantation of a fertilized ovum in the uterine wall. It would definitely lead to a judicially-enforced ban on the widespread practice of embryo destruction by IV fertility clinics, not to mention embryonic stem cell research.

In other words, support for the Human Life Amendment is the most extreme position imaginable on abortion, and one which--precisely because it reflects the belief that the courts should define the word "person" as contained in the Equal Protection Clause of the 14th Amendment as including embryos--is based on an implicit injunction to the most radical form of judicial activism. Indeed, for all the whining about judicial usurpation of legislative prerogatives that's become so common on the Cultural Right, it's this--a judicial reading of the anti-abortion movement's interpretation of the word "person" right into the Constitution--that has long been their ultimate fantasy, abandoned for tactical reasons in favor of the current drive to undermine and then reverse Roe.

Who knows, maybe Miers was just checking a conservative box on that Eagle Forum questionnaire, and maybe she didn't and doesn't embrace a radical interpretation of what it means in the U.S. Constitution to be a "person." But aside from its political ramifications, this disclosure means her inquisitors in the Senate Judiciary Committee should not be satisfied with questioning her about the constitutional underpinnings of Roe, such as Griswold and the right to privacy. A belief in fetal "personhood" as a constitutional doctrine trumps all those issues. And unless Miers and her defenders come up with a better explanation than "that was then, this is now," it could introduce a whole new dimension in a confirmation debate where her lack of qualifications, and her evangelical Christian identity, have been the only issues.
-- Posted at 4:52 PM | Link to this post | Email this post

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