Before we say any more about 939.75(2)(b)(1), let’s remind ourselves, for the sake those readers who did not skip directly to the appendix, how 940.04 got struck down, giving us Wisconsin Right-to-Life’s potential Nightmare Scenario.  This is from the white paper, page 12:

4. If adopted, what impact would the proposed state constitutional amendment have on § 940.04?

The Personhood Amendment does not present the same obstacles to renewed enforcement as the 2006 proposal. In the context of the proposed amendment as a whole, however, the reference to all people (including children prior to birth) being “equally” free raises troublesome difficulties in this regard.

The proposed amendment says that the inherent rights of all people include the right to life. Is the right to life part of the freedom that unborn children share equally with everyone else? If so, does the fact that it is shared “equally” mean that the legal protection of that right provided by the criminal law must be the same for unborn children as it is for everyone else? If the answers to these questions are “Yes,” then prescribing a lesser penalty for intentionally and deliberately killing a child three months before birth than for intentionally and deliberately killing a child sixty minutes after birth – which is one of the effects of § 904.04 – would conflict with that prescription. (This argument has been raised repeatedly over the past forty years and, in our judgment, it would be imprudent not to take it seriously. See, e.g., Chemerinsky, “Rationalizing the Abortion Debate: legal Rhetoric and the Abortion Controversy,” 31 Buff. L. Rev. 107, 112-14 & nn. 27, 38 (1982); see also Roe v. Wade, 410 U.S. 113, 157 n.54 (1973).)

A defendant seeking to assert this position in a criminal prosecution under § 940.04 would face serious standing issues. An abortionist or abortion-seeker pursuing injunctive relief, however, would not face that obstacle. Such a challenger could contend that the dramatic difference in treatment between intentionally killing people before and after birth simply cannot be squared with the amendment’s prescription of equality.

To be sure, that argument would confront a formidable substantive objection. The law routinely treats homicides differently depending on the circumstances under which they are committed. Murder for hire, to take an obvious example, is punished more harshly than murder committed impulsively at the climax of a heated argument. Judges would ask the challengers why the differentiation implicit in § 940.04 is not simply one more example of this commonplace approach.

The challengers’ answer, presumably, would be that the differentiation here is not based on circumstance but on the status of the victim; or to put it another way, on the precise “circumstance” that the amended constitutional language would make expressly ineligible for consideration. That rejoinder might fail – but it might succeed. Its prospects for success are certainly not trivial. And if it did succeed, the results would be literally fatal for thousands of unborn children in Wisconsin.

We have presumed for the sake of discussion that the challengers overcame their standing issues, made the argument suggested here, and that their rejoinder has succeeded.  Under Personhood, 940.04 is ruled unconstitutional and struck down in toto.  We now turn to 939.75(2)(b)(1), which should have been introduced into the deliberations by the defenders of 940.04.  That provision states:

(b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13, 940.15 and 940.16 to an induced abortion…

Our first question: does 939.75(2)(b)(1) establish a “dramatic difference in treatment between intentionally killing people before and after birth” in a manner similar to that of 940.04?  Yes.  Indeed, the difference in treatment is even more dramatic, as I observed in part IV: 940.04 merely reduced a Class A felony (murder) to a Class E or H felony (embezzlement) when the victim is unborn. Once 940.04 is gone, 939.75(2)(b)(1) reduces a class A felony (murder) to not a crime at all when the victim is unborn.  Clearly, our counter-challenge has merit.

Judges would likely ask us the same question they asked Planned Parenthood & Co.: since the law “routinely treats homicides differently depending on the circumstances under which they are committed, why is the differentiation implicit” in 939.75(2)(b)(1) “not simply one more example of this commonplace approach”?

The abortion industry’s answer, with respect to 940.04, was that “the differentiation here is not based on circumstance but on the status of the victim; or to put it another way, on the precise ‘circumstance’ that the amended constitutional language would make expressly ineligible for consideration.” Can we use the same answer to this question that the abortion industry did?

It would seem so.  Based on the language of both 940.04 and 939.75(2)(b)(1) , the act which allegedly encapsulates an “implicit differentiation” is almost identical.  The penalty for “abortion”, in 940.04, is generally applied to “any person who intentionally destroys the life of the unborn child.”  (There is an exception for the mother herself, but this is merely a restatement of 940.13.  It is therefore equally applicable to both statutes.)  In 939.75, “induced abortion” is defined as “the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.”  While the words are different, both definitions are, in actual fact, nearly identical: the first refers to killing an unborn child; the second to killing an unborn child in a medical procedure.  Therefore, the implicit differentiation – which is to say, the statutes’ specific and prejudicial deprivation of fetal rights – is essentially identical.  If the court agrees, it would have no choice but to make the amended constitutional language equally applicable to 939.75(2)(b)(1) as to 940.04.

However, while that rejoinder might succeed, it might fail.  The court could hold that 939.75(2)(b)(1) does not discriminate based on the status of the victim as an unborn child, but rather based on the circumstance of the killing as part of a medical procedure.  In this case, the next natural course would be to examine 939.75(2)(b)(1) under a rational basis analysis.  Pro-lifers would assert that the abortion exception in 939.75(2)(b)(1) bears no rational relationship to any state purpose other than to provide for the deprivation of the personal right to life by the strong against the weak, and therefore that the law should be struck down.

The laxity of rational basis review permits the opposition to submit several possible replies.  They could argue that, while the Wisconsin Constitution concededly does not guarantee the right of a pregnant woman to establish and maintain a zone of privacy between herself and her doctor (remember, this is post-Roe v. Wade), establishing such a zone is nevertheless within the legitimate interests of the state of Wisconsin.  Opening that physician-patient relationship (not to mention the details of the mother’s personal life) to potential prosecution in a murder investigation every time an unborn child dies, for any reason, would make any zone of confidential medical and emotional consultation impossible.  Moreover, Wisconsin law holds that it is an invasion of privacy to “intrude… in a place that a reasonable person would consider private” (955.50).  Few places more private can be imagined, Planned Parenthood’s lawyers would argue, than the interior of a woman’s own uterus.  Therefore, it is rational for the state to exclude from criminal law all cases which may, if prosecuted, tend to compromise this “zone of personal privacy.”  This exclusion would include all criminal cases alleging induced abortion.

The response to the “zone of privacy” argument would presumably point out that the privilege of physician-patient privacy, which is already defined and defended in the Wisconsin Code at §905.04, is not implicated by any matter before the court.  That statute neither affirms nor implies a class of crimes which the state cannot or should not prosecute; on the contrary, the statute and its judicial history in Wisconsin expressly contemplate the possibility that a physician-patient relationship will from time to time be at the center of a criminal prosecution.  It provides both physician and patient with certain protections and obligations in such a proceeding; it is not injured by permitting such a procedure to occur.  Further, the “right to privacy” – or, as Justice Brandeis put it, “the right to be let alone” – does not apply to actions which do material harm to someone other than the actor or actors.  Such acts are, by definition, not private, and therefore not susceptible to the protection of privacy.  While Wisconsin certainly has a legitimate interest in protecting the privacy of its citizens, the legitimate “zone of personal privacy” has never been understood under Wisconsin law to include a right to commit violent felonies against another person while the criminal justice system turns a blind eye.  Following the challengers’ novel interpretation, the Wisconsin legislature could, in order to further the state’s legitimate interest in the right to bear arms, exclude any murderer from prosecution – provided he committed the murder with a lawfully-owned firearm.  No court would sustain such an absurdity as rational.  The government of Wisconsin lacks the authority to retreat from its constitutional responsibility to “secure these… inherent rights” (Article I, Section 1) on such flimsy rationalizations, which do not even rise to the dignity of pretext.

Alternatively, the challengers could argue that 939.75(2)(b)(1)’s exclusion of certain medical procedures from prosecution under murder statutes is an appropriate and prudent response to the possibility that doctors could otherwise be prosecuted for accidents and other innocent, if tragic, occurrences that take place, from time to time, in the practice of medicine.  In this way, 939.75(2)(b)(1) simply discriminates on the basis of a particular medical practice which just happens to be the deliberate killing of a human being, rather than on the basis of their status as unborn humans per se.  Unfortunately for this argument, the innocent circumstances described are already fully excluded by the much more narrowly-tailored, precise 939.75(2)(b)(2).  Thus, it is hard for me to see this argument going anywhere.

In any case, the pro-lifers attacking 939.75(2)(b)(1) in the alternative would have an ace in the hole.  So far, we’ve discussed the challenge to 939.75(2)(b)(1) on rational basis terms.  However, this is not just any equal protection case.  939.75(2)(b)(1) is not just a minor burden to those who fall victim to it; they aren’t merely denied the right to serve in the military or forced to pay a special tax.  They are deprived of their very lives.  The right to life is one of a precious few which are considered fundamental rights in American law. It is enumerated in Amendment XIV of the U.S. Constitution and applied directly to the states. (Its fundamental status is verified in Yick Wo v. Hopkins (1886) and Johnson v. Zerbst (1938)). When a law places a burden upon a fundamental right, it triggers what is known as strict scrutiny review (NAACP v. Alabama (1958), Massachusetts Bd. of Retirement v. Murgia (1975)).  I am citing federal cases, but the Wisconsin Supreme Court has explicitly tethered its equal protection and strict scrutiny analysis to the parallel federal interpretations (see, e.g., Reginald D. v. State (1995)), so they are no less applicable here.

Strict scrutiny review shifts the burden of proof from a law’s challenger to the party defending the law (normally the government), because the judiciary considers laws that infringe certain core liberties or attack certain minority groups “immediately suspect”, and requires a high standard of proof to save those laws from being struck down as unconstitutional under equal protection clauses.  That standard of proof involves three points: the law must be justified by a “compelling government interest”; it must be “narrowly tailored” to achieve that interest; and it must use the “least restrictive means” for achieving that interest.  The court is free to question the motivations behind discriminatory laws under strict scrutiny analysis – and strike them down if the motivation is discrimination itself.  It is not an easy standard for a law to survive; the old saw about strict scrutiny is “strict in theory; fatal in fact.”  As a strict scrutiny precursor, Yick Wo v. Hopkins (1886), put it [emphasis mine]:

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power… the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws, and not of men.” For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.

If strict scrutiny is applied, it is difficult to imagine a path to survival for 939.75(2)(b)(1), especially given our presumption that 940.04 has already been struck down on similar grounds.  The challengers’ best shot would be to argue that a statutory limitation on criminal charges does not inherently burden a right, and therefore strict scrutiny should not apply.  In support of this claim, they could offer a variety of existing exceptions to murder statutes: the right to deliberately kill in self-defense, the right to deliberately kill in the course of a just war, the right to deliberately kill in order to prevent a felony, and mitigation of punishment if there was “adequate provocation” for the killing.

However, the rejoinder in this instance is reasonably persuasive: a statutory limitation does burden a right if its effect, in law or in fact, is to deprive of its fundamental rights a “discrete and insular minority” which lacks the agency to make use of “those political processes ordinarily to be relied upon to protect minorities” (U.S. v. Carolene Products (1938)) – such as unborn children, who cannot vote – without reciprocal cause.  For example, one might lose the normal protection of his right to life through his decision to rob a bank; another by fighting for the enemy in a war; yet another by placing someone “in imminent danger of death” (as 940.01 puts it).  No such reciprocal cause is offered, or indeed possible, in the case of an innocent fetus in a normal pregnancy.  Therefore strict scrutiny must be engaged, and 939.75(2)(b)(1) must be struck down.

Since 939.75(2)(b)(1)’s detractors need only succeed on any one of these lines of argument, and since it has, in my opinion, the better of all of them, it seems more likely than not that the effort will succeed.  In the unlikely event that 940.04 is struck down as unconstitutional under Personhood, it is likely, in my opinion, that the Alternative Scenario would follow from any successful challenge to 939.75(2)(b)(1), whether coincident with the decision on 940.04 or pursued at a later date.

We were just discussing Wisconsin Right-to-Life’s claim that enacting Personhood could lead to an essentially unlimited right to abortion in Wisconsin, even after Roe v. Wade is overturned.  I have termed this the “Nightmare Scenario.”  In my previous post, I showed why the mere possibility of the Nightmare Scenario is not dispositive for the Personhood Amendment and its supporters.  In this post, I aim to show why the Nightmare Scenario is much less likely than Bopp et al. contend.

The key to the Nightmare Scenario is the white paper’s claim that, under Personhood, there is a real possibility that 940.04 could be completely struck down in a court challenge.  This is actually true: if the lawsuit is brought, there is a non-trivial chance it will succeed.  But, if 940.04 is struck down, what would happen to unborn children? Bopp et al. believe the Nightmare Scenario is the unavoidable outcome.  On the contrary, the Nightmare Scenario – the return of a virtually unstoppable right to abortion – is not only avoidable, but is arguably the least likely outcome of a successful lawsuit against 940.04.

Bear in mind, going forward, that both WRtL and I have departed the plainly beaten track of precedent to venture off into speculation that is now several degrees separated from reality.  We are assuming Roe v. Wade is eventually overturned, that Personhood has passed, and that Planned Parenthood and its allies have successfully gotten their challenge lawsuit all the way to the merits of the case, which is the part of a legal case where all technicalities have been resolved and the court is finally forced to rule on the substantial legal question.  That question is: does the Personhood Amendment force a court to strike down the entirety of 940.04 on the grounds that it treats unborn human beings unequally?  We have further assumed that the court has already made up its mind, and that the answer is “Yes.”

We will not even discuss the argument made by the Wisconsin Legislative Council: that the court would be more likely to strike down only the “therapeutic abortion” exception than the whole law.  That’s another possible outcome in which Personhood would strengthen, not weaken, Wisconsin’s protections for the unborn.  It is also another possible outcome that the white paper left unaddressed, despite the WLC’s unambiguous conclusion: “…it does not appear likely that a court would be likely to hold that the proposed constitutional amendment impliedly repeals the statute as a whole” [emphasis added].

We have assumed, then, that the court will reach the least likely conclusion in this unlikely case and strike down the entirety of §940.04. What would that decision mean for Wisconsin law as a whole?  Must it lead to the Nightmare Scenario, as Bopp et al. contend?

Neither I nor anybody who wrote the white paper is a prophet.  None of our predictions should be understood as anything more than that, especially given our capricious and politicized judiciary.  Yet we can say that some outcomes are more likely than others, based on existing law, precedents, and the inclinations of today’s judiciary, so our inquiry is not without merit.

Let us first consider Wisconsin Right-to-Life’s speculation: on page 13, the white paper contends that striking down 940.04 using the Personhood Amendment would lead directly to the Nightmare Scenario, because there would be no remaining protections for the unborn in the state of Wisconsin.  The Personhood Amendment, by this point, likely would have already seen a federal court challenge, with the court ruling that it has no direct force over abortions (at least not while Roe survived).  In any event, the Personhood Amendment could not, in itself, provide a replacement for the lost anti-abortion statute, and, lacking legal protection, thousands of unborn children would die.

Or, as the white paper puts it (page 13):

Assume that the proposed state constitutional amendment is adopted, Roe is overruled, and §940.04 [is] declared unconstitutional under the amendment. Would the proposed state constitutional amendment sufficiently protect the unborn?

… [T]he answer is no…

Supporters of the [Personhood] proposal insist that it is not intended to… in and of itself prohibit abortion… The only way it could have that effect would be if it were interpreted as implicitly amending existing unlawful homicide statutes to bring abortion within their scope by defining “person” and “people” to include unborn children. It is extremely unlikely that the Wisconsin Supreme Court would countenance such an interpretation…

A measure that had been successfully defended against constitutional attack before Roe v. Wade was overturned on the ground that it did not criminalize abortion either directly or by implication could not credibly be used to prosecute abortionists under criminal statutes that had never before been understood as applying to abortions… Hence, it is very hard to imagine any circumstances under which a criminal prosecution under the Personhood Amendment would even be attempted, much less successful.

It is not clear to me whether Bopp et al. are deliberately giving a dumbed-down explanation of existing homicide statutes in order to communicate with a wide audience, or if they sincerely but quite wrongly believe that this is how Wisconsin homicide law works.  I tremble in my mismatched dark socks to write those words of such esteemed comrades in the pro-life cause, but, unless the statute I’m reading isn’t the real Wisconsin homicide law, they’ve got it wrong – and importantly wrong.

You may already see this coming, because I’ve been quietly pounding it into your head throughout this entire post, but here, for the record, is the complete Wisconsin statute on first-degree murder [bolding mine]:

940.01  First-degree intentional homicide.

(1)  Offenses.

(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.

(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.

(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).

(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).

There is absolutely no need for the Wisconsin Supreme Court to “countenance the interpretation” that unborn children are already presently within the scope of Wisconsin’s murder statutes.  Unborn children are already, explicitly, beyond question, within that scope.  There is absolutely no interpretative space for the Wisconsin Supreme Court to maneuver, no matter how strongly the justices may support abortion rights.  It is one of Wisconsin law’s best features, from a pro-life defensive standpoint.  “Implicit amendment,” then, is not the question Wisconsin courts will have to face if and when 940.04 is struck down  – and that’s good, because, as the white paper suggests, the doctrines of implied repeal and amendment are a very chancey and uncertain basis for any legal case, especially before a court hostile to your aims.  (If only Mr. Bopp had recognized that in his 2007 memo against Georgia’s Personhood initiative, as well.)  Let us dispense with it.

What, then is the question the Wisconsin courts would face once the decision has been made to strike down 940.04?

Answer:  “If §940.04 is unconstitutional under Personhood, isn’t §939.75(2)(b)(1) unconstitutional, too?”

Remember 939.75?  It hasn’t been mentioned for a while, but it’s been in all the charts.  It’s the law that prevents the murder law from applying to aborted children.  Actually, though, I have oversimplified the statute a little bit up to this point.  The specific provision that makes abortion an exception to the murder law is 939.75(2)(b)(1).  Other provisions of 939.75 make several quite rational exceptions to the murder law.  For example, 939.75(2)(b)(2) protects a doctor from a murder charge if he accidentally kills an unborn child in the course of amniocentesis, or if the baby dies accidentally during the mom’s cancer treatment, or has to be removed prematurely (but non-violently) due to an ectopic pregnancy and does not survive.  939.75(2)(b)(3) protects a mother from prosecution for murder if she suffers a miscarriage (for example, if a pregnant mom falls down the stairs and loses the baby).  Basically, the other provisions of 939.75 make it clear that common accidents and tragedies of pregnancy aren’t murder.  They prove that all of Planned Parenthood’s most insane claims about Personhood (“Personhood would make ectopic pregnancy a death sentence!” “Under Personhood, moms who miscarry would go to prison!”) are… well, to use an ugly word… lies.

939.75(2)(b)(1), though, is a completely different story.  It does not protect people from prosecution for common accidents.  It says that attacking and killing a living human being, deliberately, with malice aforethought, is not murder, simply because the victim happens to be located in his or her mother’s womb.  It is discrimination of the most odious sort.  If 940.04 is unconstitutional because it denies the unborn equal protection of the laws, then 939.75(2)(b)(1) is surely no less unconstitutional.

Here is the statute, in its entirety (I have bolded the bit – (2)(b)(1) – that would be hypothetically found unconstitutional):

939.75  Death or harm to an unborn child.

(1) In this section and ss. 939.24 (1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e), “unborn child” means any individual of the human species from fertilization until birth that is gestating inside a woman.

(2)

(a) In this subsection, “induced abortion” means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

(b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) and (1g) (c), (cm), and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04, 940.13, 940.15 and 940.16 to an induced abortion.

2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under ch. 448.

2h. An act by any health care provider, as defined in s. 155.01 (7), that is in accordance with a pregnant woman’s power of attorney for health care instrument under ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman’s power of attorney for health care instrument under ch. 155.

3. An act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.

4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.

(3) When the existence of an exception under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under s. 940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) or (1g) (c), (cm), or (d), 940.10 (2), 940.195, 940.23 (1) (b) or (2) (b), 940.24 (2) or 940.25 (1) (c) to (e).

According to the white paper, the reason 940.04 could be struck down is because a “dramatic difference in treatment between intentionally killing people before and after birth simply cannot be squared with the amendment’s prescription of equality.”  940.04 merely makes abortion a lesser felony than a murder, and our hypothetical court has held even that relatively minor difference unconstitutional.   However, if 940.04 is struck down, as our scenario presumes, 939.75(2)(b)(1) becomes the law that causes murder of a born person to be treated as murder… but murder of an unborn person to be treated as no crime at all!  This raises extremely strong equal protection concerns – concerns which the court will have already admitted with respect to 940.04.  If the same reasoning applies – and it seems more likely than unlikely that it would  – 939.75(2)(b)(1) would have to be struck down, as well.  The result would suddenly turn the Nightmare Scenario into near-total victory for Pro-Lifers: abortion would become murder under the law of Wisconsin.  Which brings us to our final chart, the more plausible ALTERNATIVE SCENARIO to the Nightmare Scenario:

I discuss the case for the Alternative Scenario at greater length in the Appendix.

Bopp et al. spend only one sentence in their entire white paper contemplating what would happen if 939.75(2)(b)(1) were struck down, bringing abortion back within the scope of Wisconsin’s murder laws on an equal protection analysis.  They write the following, without providing any discussion or evidence (page 4):

If the amendment were held to make existing intentional homicide statutes applicable to abortion, women who have abortions would be subject to mandatory life sentences.

Wisconsin Right-to-Life seems to consider this a bad outcome. (When I asked them directly about their ideal Wisconsin abortion law, the only answer I received was the white paper.)  Most pro-lifers I know would agree: the consensus throughout the movement is that mothers should not be prosecuted for killing their children in an abortion.  On the other hand, I know a few pro-lifers who believe murder is murder, and that it would be good for aborting moms to face life sentences.  For myself – if I may digress into purely personal opinion for a moment – I am very uncomfortable, like most of society, with the idea of putting a woman in prison for maliciously murdering her unborn child.  On the other hand, unlike most of society, I am very uncomfortable with the idea of putting a woman in prison for maliciously murdering her one-year-old child.  I am not certain how mothers in those two circumstances should be treated by the law, but I am certain that the treatment should be the same.  Take that however you will.  (The usually-wrong but always-genuine William Saletan has a good discussion of the question here.)

However, my personal opinion on the matter has little to do with the legal reality, and the reality of the Alternative Scenario is that Bopp et al. do not prove their case.  Heck, they don’t even try.  They provide absolutely no evidence in support of their contention.  This is a serious problem, because – well, just look back at the chart above.  Notice §940.13?  It’s in the yellow box in the lower right.  In both the Nightmare Scenario and the Alternative Scenario §940.13 is still on the books.  Do you remember what §940.13 is?

It’s the “maternal exception clause”:

940.13  Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05 [aiding and abetting], 939.30 [solicitation] or 939.31 [conspiracy] does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.

In the Alternative Scenario, the maternal exception clause is still on the books.

It is difficult to imagine either abortion’s allies or its opponents challenging 940.13 in court, or introducing it as a question into a larger abortion case.  Pro-lifers, as I mentioned, don’t want to put mothers in jail, and Planned Parenthood only wants to deprive women of their rights if they’re still in the womb.  Moreover, it is not entirely clear how any party would gain legal standing to make the challenge.

To be sure, if somebody did decide, for some reason, to challenge 940.13 under the Alternative Scenario, the defense would face a stiff challenge on the same equal protection claims that will have already felled 940.04 and 939.75(2)(b)(1).  Even so, this exception might plausibly be saved (albeit perhaps in more limited form) by presenting a rational basis for keeping the exception.  Generally speaking, a court cannot strike down a law as unconstitutional unless it is “without any reasonable basis and therefore is purely arbitrary” (Lindsley v. Natural Carbonic Gas Co. (1991)).  This is called the “rational basis” standard.  In order to be held constitutional under the rational basis standard in Wisconsin, a law must pass a five-point test (Omernik v State (1974)):

(1) All classification must be based upon substantial distinctions;
(2) the classification must be germane to the purpose of the law;
(3) the classification must not be based on existing circumstances only;
(4) the law must apply equally to each member of the class; and
(5) the characteristics of each class should be so far different from those of other classes as to reasonably suggest the propriety of substantially different legislation.

“The basic test is not whether some inequality results from the classification,” the Court goes on, “but whether there exists any reasonable basis to justify the classification.”  It later synthesized and applied a simple expression of the same rule: “…legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest” (Funk v. Wollin Silo & Equipment, Inc. (1989)). This is identical to the Supreme Court’s criterion for rational basis review: “…this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose” (Weber v. Aetna (1972)).

Unlike the induced abortion exception in 939.75(2)(b)(1), whose sole purpose was to provide for the deprivation of human rights by the strong against the weak, the maternal exception clause in 940.13 does bear “some rational relationship to a legitimate state purpose.”  It can be held constitutional under the rational basis standard.  What “legitimate state purpose”, you ask?

Many pro-lifers argue that mothers should not be prosecuted for the same reason that law enforcement focuses on drug dealers and copyright pirates rather than drug users and illegal downloaders: even though these mothers committed a serious crime, they are typically accomplices, not the primary criminal actors, and their cooperation is vital in bringing much worse bad guys – the cold-blooded, for-profit abortionists – to justice.  Alternatively, as other pro-lifers argue, mothers who get abortions frequently operate under a certain amount of duress (from families or significant others), and their culpability is reduced accordingly.

If the state legislature has found, on its own examination of the issues, that an absolute maternal exception is more advantageous to Wisconsin’s abortion enforcement efforts than putting aborted mothers in danger of prison, or that abortive mothers, broadly speaking, cannot be held responsible for getting abortions, then that exception would bear a “rational relationship” to the “legitimate state purpose” of minimizing the murders of unborn children and maximizing the criminal convictions of the most serious malefactors while conserving justice in those cases. The courts would have little room to declare 940.13 unconstitutional.  Importantly, the courts cannot closely review the legislature’s practical real-world findings.  Under pure rational basis analysis, even if the rational basis presented is merely a pretext for the genuine motive for a piece for legislation, the Court presumes the best of the legislature and upholds it anyway (U.S. v. Carolene Products (1938), Williamson v. Lee Optical (1955)) – although this standard has been somewhat eroded in recent years (Kelo v. New London (2005), Romer v. Evans (1996)), and is not as strong under Wisconsin’s Omernik Test (see Omernik rule #5 above).

So we see that, even if the unlikely comes to pass and the Alternative or Nightmare scenario actually happens, and even if 940.13 is, for some reason, challenged in court (which seems even more unlikely), there is at least a plausible possibility that women will not face prosecution for murder under Personhood.  (However, there is also a real chance that the challenge to 940.13 would trigger strict scrutiny review, and it is much less likely to survive that level of review.  More discussion of strict scrutiny in the appendix.)

Now let’s consider one more thing: this discussion of murder exceptions and maternal immunity is all based on our assumption that Planned Parenthood and its allies attempted, in the first place, to bring about the Nightmare Scenario by challenging section 940.04.  We’ve spent the last ten pages in a sort of speculative alternative universe where that happened, and, to one extent or another, Planned Parenthood succeeded (in the Alternative Scenario, it succeeded so well that the case backfired on them, by killing 939.75(2)(b)(1) as well).  The white paper and I agree that Planned Parenthood is unlikely to succeed in bringing about the Nightmare Scenario.  I have just presented a seemingly more plausible Alternative Scenario where, rather than bringing back abortion rights from the brink of Roe, Planned Parenthood accidentally triggers a constitutional prohibition on abortion, and even made Wisconsin’s moms less invulnerable to abortion laws – all because it decided to fight Personhood rather than go along with it.  As I mentioned earlier, the Wisconsin Legislative Council, which does not have a dog in this fight, found a completely different way a court case against Personhood could trigger the same doomsday for the abortion industry.  Given the cost/benefit analysis, how likely is it that Planned Parenthood and its allies would even undertake this risky lawsuit, jeopardizing all that would remain of their abortion businesses, in the first place?  It could only be an act of extreme desperation, and it would betray their own professed loyalty to women in favor of their business model (which is still 20% abortions).

From all of the foregoing, we may reasonably conclude that, if Personhood is passed, the most likely outcome is Personhood Wisconsin’s Vision:

Abortion is mostly illegal, punishable as a minor felony, with an exception for the life of the mother left in place.  Mothers are immune to prosecution under abortion statutes, which means the punishment falls entirely on the heads of abortionists themselves.  Most pro-lifers would call this a mostly-victory.

If the lawsuit against 940.04 is nevertheless attempted and, to everyone’s surprise, succeeds, the next-most plausible outcome would be some version of the Alternative Scenario:

Abortion is a Class A felony, equivalent to murder.  While, thanks to the protections provided by 939.75(2)(b)(2)),  it still remains entirely possible to adequately treat a mother in a dangerous pregnancy — even if the treatment unfortunately leads to the death of her unborn child — doctors are forced to practice a humane form of medicine that treats both mother and child as patients, rather than treating the child as a tumor.  This scenario is also a victory, although more thought clearly needs to be given to the nature and extent of the maternal exception law.

The least likely outcome of passing Personhood, I contend, is what Wisconsin Right-to-Life proposes as its Nightmare Scenario:

940.04 is struck down in its entirety, but 939.75 is not, re-establishing a nearly-unlimited right to an abortion even after Roe is gone.  This is a horrifying, if remote, possibility.

On the other hand, inaction is not without risks, either, as we found when we examined Wisconsin law post-Roe v Wade if the state doesn’t pass Personhood or something like it:

Existing anti-abortion law is very, very vulnerable to an unamended Wisconsin Constitution, and that’s a risk we need to consider when deciding whether or not to support Personhood or not.

Of course, almost anything would be better than current law:

All legislative actions, especially legislative actions on abortion, are a balance of likely risks versus likely rewards.  Every Wisconsin pro-lifer – and, one day, I hope, every Wisconsin voter – will have to draw his or her own conclusion about the risks and rewards of the Personhood Amendment. For my money, however, the Personhood Amendment is an effective way to defend Wisconsin’s unborn children from a rogue clause of the Wisconsin Constitution while affirming that Wisconsin has a culture of life.  It carries likely and significant benefits after Roe v. Wade is overturned, and very unlikely or relatively insignificant risks.

Wisconsin Right-to-Life and Bopp et al. remain friends and allies within the pro-life movement, but they have gravely misrepresented the Personhood cause to the voters they purport to serve – no doubt without intending to do so.  They ought to immediately revise, retract, or expand upon all their statements on Personhood, especially the enormously deceptive claims made on their website and in their printed brochures. This is all I can insist upon as a matter of demonstrated fact.

However, where I cannot prescribe in foro indicii, I shall entreat in foro conscientiae, on no authority other than the bonds of affection that conjoin all of us who stand united in the cause to abolish abortion.  I urge Mrs. Lyons, Mr. Bopp, and all those associated with Wisconsin Right-to-Life and the white paper to reconsider their respective positions on Personhood Wisconsin in light of the arguments I have collected here.  I have spent two months toiling on these posts not to damn Wisconsin Right-to-Life, but to persuade it.  Even upon deeper reflection, perhaps these pro-life friends will find themselves unable to support the Wisconsin Personhood Amendment, for reasons, prudential or substantive, which I may not be able to fathom.  But I beg that the reflection be made, in the silence of the spirit and the quiet of the law library, without peremptory intervention by the prejudice of faction or the fear for political embarrassment, so that the course of action most beneficial to Wisconsin’s unborn children may be discerned and pursued.

As I stated way back in my first post, I am not a lawyer, and I have only a keen amateur interest in the law.  I am genuinely baffled by what I have seen in Wisconsin Right-to-Life’s papers.  The possibility that I am wrong and a slew of pro-life luminaries like Jim Bopp are right is hardly negligible.  I invite responses and constructive criticism (or heck, destructive criticism, too) from you, the readers.  Further, as I promised at the outset, I will reprint, in full, any response I may receive from Wisconsin Right-to-Life or any of the signatories of their white paper, even if I do not find their case persuasive.

Thank you, dear reader, for your time and patience, and I hope you and your elected officials will make the right choice for Wisconsin’s unborn children – whatever that choice proves to be.

N.B.: I am including a further appendix discussing the constitutionality of 939.75(2)(b)(1) at greater length.  That is also where I include my discussion of strict scrutiny, which I promised above.

You might also wish to read the second article in this series, which discussed Wisconsin Right-to-Life’s public claims about the Personhood Amendment.  We now move on to its non-public claims.

This third post about Personhood Wisconsin is a lot more technical than the first two.  It’s also a lot longer.  It has no funny pictures.  I am assuming that you are, by this point, familiar with the basic terrain, and that you know my feelings about the groups involved, so I will not restate them.  Instead, I will dive right in.

Here’s the TLDR: Wisconsin Right-to-Life’s lawyers rely on a peculiar combination of unlikely presumptions and studied indifferences in order to reach their conclusion opposing the Personhood Amendment.  Their white paper consistently presumes all the risks of a Personhood Amendment, no matter how unlikely, and studiously ignores or dismisses both the rewards of Personhood and at least one obvious counter-argument to their major claim. For these reasons, I consider its conclusions unreasonable.  Wisconsin unborn children will be best protected by passing a Personhood Amendment, rather than leaving them to an uncertain future under the vulnerable pre-Roe statute currently on the books.  That’s the long and short of it.  If you are not feeling up to an extensive nitpicking of a fourteen-page legal opinion, you can leave now.

Still with us?  Welcome aboard.  I’ll reward you with the joke I promised in the title:

Q: Did you hear the one about the word processor for lawyers?

A: No, I didn’t.  Why are you even talking to me?  Who are you?

Q: No matter what font you select, everything comes out in fine print!

Q makes a good point: just because a lawyer is saying something at great length, citing his sources and making great sense as he goes, does not mean he is saying anything of relevance or, indeed, of interest.  It will be helpful to bear this in mind as you read through Wisconsin Right-to-Life’s white paper with me.  Which reminds me, I had better go ahead and post a copy for you to read:

WRtL 2011 Personhood White Paper, aka:

Wisconsin’s Pre-Roe v. Wade Abortion Statute: Current Status and Potential Threats Related to 2011 AJR 77, A Proposed Amendment to the State Constitution.  Published by Wisconsin Right-to-Life, Milwaukee, WI, in January 2012.

I’m not certain why I, of all people, am the first person to put this up online, but I made it clear in my communication with Wisconsin Right-to-Life that I intended to discuss any reply they sent me on my blog, and they raised no objection.  So here it is.  Please read along with me, especially if you are a bona fide lawyer, and call me on it if you see me taking any liberties with the text Wisconsin Right-to-Life presented to me.  Throughout the rest of this post, I will refer to this document as “the white paper” and its authors as “James Bopp et al.”.  Bopp is both the first-listed author and, by all accounts, the principal author of the text, although it has sixteen other signers.  All are lawyers, some, like Clarke Forsythe and Rick Esenburg, well-known to pro-lifers in and out of Wisconsin.  I quail to question any document with such names attached to it, and I freely admit my “legal training” consists of two honors classes in undergrad and a penchant for reading judicial decisions.  I would hate to put all this work into arguing that Bopp et al. are wrong only to have myself proved wrong by Bopp et al.  Nevertheless, if I am wrong, I hope that they will swiftly correct me in the spirit of pro-life fraternity.  I will, of course, post any response they or anyone associated with Wisconsin Right-to-Life sends me, regardless of whether or not I find that reply persuasive.

Having disclaimed myself, let’s get to legal matters. I’ll start by mentioning a few pieces of Wisconsin law, which I will use throughout this piece without further explanation:

Article I, Section 1 (equal protection clause): Section of the Wisconsin Constitution that guarantees equal rights to all persons (link).  Currently implies that personhood begin at birth, not conception.  Personhood would amend this section to clarify that human rights begin at the beginning of human life – that is, conception (link).

Section 940.04 (“Abortion” law): This is Wisconsin’s pre-Roe anti-abortion statute (link).  As discussed in the previous post, it is not perfect, and it is currently unenforceable because of Roe v. Wade.  If Roe were ever overturned, Section 940.04 would immediately come back into force.

Section 940.01 (“Murder” law): This is Wisconsin’s murder statute (link).  Interestingly, Wisconsin’s murder statute specifically mentions that killing an unborn child is murder, legally equivalent to any other murder.  Taken by itself, Section 940.01 says that abortion is, literally, murder.

Section 939.75 (abortion-not-murder law): This statute (link) states that a legal, surgical abortion with the mother’s consent is not murder.  Its main purpose is to create an exception to the abortion-is-murder formula in Section 940.01 (and several other parallel sections).

Section 940.13 (maternal immunity law): This law (link) states that a mother can never be prosecuted for an abortion; only the abortionist who performs the surgery can be punished for the crime.

Section 940.15: Wisconsin’s post-Roe abortion statute (link).  Restricts abortion as much as the Supreme Court allows, which is not very much.  If Roe were overturned, it would be superseded by 940.04.

Abortion regulations: There are various other abortion laws in Wisconsin, like 940.16 (banning partial-birth abortion), 253.10 (informed consent and waiting period), and 20.927 (restricting state funding of abortions).  I refer to them collectively (along with 940.13 and 940.15) as Wisconsin’s abortion regulations, since they regulate abortion but do not significantly restrict it.  They are going to remain on the books whether Personhood passes or not, so I won’t discuss them very much.

Roe v. Wade & Doe v. Bolton: A pair of 1973 Supreme Court decisions which, taken together, created a virtually unlimited right to abortion throughout the country (link and link).  Roe depends on the court’s finding that the unborn child is not a person – at least not for the purposes of the U.S. Constitution.  (The white paper also discusses Babbitz v. McCann, a lower-court series of cases from the early 1970s, similar to Roe v. Wade but specifically about Wisconsin law.  Babbitz – which began before Roe was handed down – initially ruled 940.04 unconstitutional, but later had that ruling suspended.  It was still in progress when Roe rendered the entire case moot, or no longer relevant, and the case died.  I do not dispute any of the white paper’s claims about Babbitz or its companion, Larkin, and so we will not discuss them much here, if at all.)

Now, I know I just threw a lot of conflicting statutes at you without giving you a big picture of how they all fit together.  So… here’s the big picture!  This chart represents the CURRENT LAW OF WISCONSIN, as of July 2012:

As you can see, while Roe remains the chief obstacle to anti-abortion law in Wisconsin, there is another big threat on the horizon: the Wisconsin Constitution could kill 940.04.  This is probably the most important point in my entire discussion, so I’ll state it again: even without Roe v. Wade in the way, the Wisconsin Constitution could kill Wisconsin’s primary law against abortion.

Bopp et al. spend the first half of their white paper (yes, half) discussing a point which is almost totally uncontroversial: they insist, stridently, that Section 940.04 has not yet been repealed or enjoined.  This means that, if Roe were overturned by the Supreme Court, Section 940.04 would come immediately into effect; there would be no need to pass further laws or win further court cases to put Wisconsin’s abortion law back in play.  This is very probably true, and no major player in the debate has, to my knowledge, disputed it — even Planned Parenthood agrees.  The only group to raise this question, the non-partisan Wisconsin Legislative Council, did so in a single throwaway line at the end of their Personhood analysis.  Nevertheless, Bopp et al. painstakingly construct a fireproof legal argument proving that 940.04 would go back into effect the day after Roe is thrown on the ash heap of history.    You can read it yourself, if you like.  I’m happy to agree with all of it.

The problem is what happens after somebody actually gets arrested for performing an abortion.  That abortionist is going to go to court, and is going to try to prove that, even if the U.S. Constitution doesn’t guarantee the right to an abortion, the Wisconsin Constitution does.  Unfortunately, the equal protection clause of the Wisconsin Constitution, and the undeniable possibility of activism among Wisconsin’s most powerful judges, this challenge is at least somewhat likely to succeed.  Section 940.04 would be overturned, and abortions in Wisconsin would resume as if Roe were still in effect.

Don’t just take my word for it.  Here are the words of a prominent pro-life lawyer, writing back in 2007 [bold emphasis mine]:

An equal protection justification for the declared abortion right was advocated by attorneys for the Planned Parenthood Federation and the ACLU in Webster v. Reproductive Health Services. 492 U.S. 490 (1989). It has also been advocated by Harvard Law School Professor Laurence Tribe, among others. See, e.g. Laurence Tribe, American Constitutional Law 1353 n.109 (2d ed. 1988). While an argument can be made that the equal protection clause provides no basis for a right to abortion, see Bopp, Will There Be a Constitutional Right to Abortion After the Reconsideration of Roe v. Wade?, 15 J. Contemp. L. 136-41, now-Justice Ginsburg has argued that the equal protection clause provides a justification for an abortion right that is superior to the analysis employed in Roe. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L Rev. 375 (1985). And as noted above, four dissenting justices in Gonzales have now joined her position. Were the Court to embrace her view that the equal protection clause protects the right to choose abortion on the basis of gender discrimination (in a majority opinion, or even in a plurality opinion), states would likely have to fund abortions that they are not currently required to fund in programs for indigent persons. This has happened in some states that passed an equal rights amendment (which has a similar analytical effect to adopting an equal protection rationale for abortion rights). See, e.g., Fisher v. Dept. Pub. Welfare, 482 A.2d 1137 (1984), rev’d, 502 S.2d 114 (Pa. 1985); Maher v. Roe, 515 A.2d 134 (Conn. Super. Ct. 1986).

The pro-life lawyer who wrote that is James Bopp, in his widely-read memo arguing against some earlier, more aggressive, versions of the Personhood Amendment in other states.  It is curious that he does not appear to notice its application in favor of Personhood in Wisconsin 2012.

The bottom line is pretty clear: states that explicitly grant a constitutional right to equal protection, but do not explicitly grant constitutional rights to the unborn, are highly vulnerable to a rogue judiciary establishing a state-level constitutional right to abortion – and perhaps even rolling back existing anti-abortion laws.  Indeed, some state Supreme Courts have “found” a right to abortion in their state constitutions on much thinner pretexts (e.g. Minnesota: Doe v. Gomez (1995); New Jersey: Right to Choose v. Byrne (1982)) than Wisconsin’s Constitution provides. This would be all the more true in a post-Roe judicial challenge, with liberal activists desperate to find some way to justify continuing the legal abortion regime.  Wisconsin is not just one of many states in danger: with its “born free and equal” language, it is more vulnerable to this analysis than almost any other state in the nation.  There is a significant possibility that Section 940.04 would be overturned, with fatal consequences for the unborn.  Here is WISCONSIN LAW AFTER ROE ENDS, represented graphically:

Personhood, however, would block the equal protection argument for abortion by amending Article I, Section 1 to clarify Wisconsin’s recognition of unborn rights.  This is the strongest argument for passing the Personhood Amendment.  It is the key claim made by Personhood Wisconsin on their website and in the initiative’s memo to Wisconsin legislators: “An activist Wisconsin Supreme Court could someday use this provision [the equal protection clause] 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… Only by enshrining the right to life in our state constitution will preborn children be afforded full and lasting legal protection.”

In response to this, the core argument of Personhood backers, the Wisconsin Right-to-Life white paper says… nothing whatsoever.  I have nothing to respond to; the space Bopp et al. should have been spent discussing Section 940.04’s survival in the post-Roe environment was instead spent litigating the issue of “implied repeal,” which nobody in the Wisconsin abortion debate has contested.  Then, they discuss the possibilty and likely outcomes of a federal court case against Personhood under Roe, which is, again, not relevant to the post-Roe world, and with which I, again, completely agree (see my simplified discussion of a direct challenge under Roe all the way back in Part I).

So, without further ado, this is PERSONHOOD WISCONSIN’S VISION of Wisconsin immediately after Roe, if the Personhood Amendment has been passed:

Abortion would be treated as a minor felony, with a life-of-the-mother exception.  This would outlaw more than 99% of abortions.  For Wisconsin Right-to-Life, this may, in fact, constitute a total victory.

Of course, for abortion abolitionists, this would not be the end of the road.  As I stated in my first post, our object is twofold: (1) to have the deliberate and directly intended killing of any human being at any stage of development universally condemned as murder, and (2) to institute a humane medical system that treats both mothers and their children as patients.  Because of the legal complexities surrounding “life-of-the-mother” exceptions, 940.04 does neither – but it is, without a doubt, a fantastic start, and a tremendous leap forward from where the Wisconsin pro-life movement stands today.  Personhood supporters and Wisconsin Right-to-Life all agree: we want Section 940.04 in force following the death of Roe.  The Personhood Amendment, at first blush, appears to ensure that.

Wisconsin Right-to-Life’s chief fear is that there is a risk (a modest risk, Bopp et al. acknowledge, but a risk) the Personhood Amendment would actually injure 940.04.  This is their core argument in both the white paper and the web site. As Bopp et al. put it in their executive summary, “The language of the proposed amendment would create a material risk of Wisconsin’s pre-Roe criminal abortion statute [Section 940.04] being declared unconstitutional under the Wisconsin Constitution.”  How could this be?  Well, turn to page 12 of your copy of the white paper:

The proposed amendment says that the inherent rights of all people include the right to life. Is the right to life part of the freedom that unborn children share equally with everyone else? If so, does the fact that it is shared “equally” mean that the legal protection of that right provided by the criminal law must be the same for unborn children as it is for everyone else? If the answers to these questions are “Yes,” then prescribing a lesser penalty for intentionally and deliberately killing a child three months before birth than for intentionally and deliberately killing a child sixty minutes after birth – which is one of the effects of §904.04 – would conflict with that prescription.

Let me restate that a little bit, for non-lawyers: Wisconsin’s combined murder laws (940.01 plus 939.75) make murder of a born person a Class A felony, with a penalty of life imprisonment.  Wisconsin’s abortion statute makes the murder of an unborn person, with the mother’s consent, only a Class E felony – at most – which carries a penalty of up to 15 years in prison.  Since, right now, unborn people have no recognized rights under Wisconsin law, it is legal for abortion to be a lesser crime than murder.

If Wisconsin passed Personhood, that would change.  Suddenly, unborn people would have rights under the law – rights that are theoretically equal to those of born people!  This would give the opportunity for abortion supporters to sue.

After all, what if Wisconsin had a law saying that murdering a man is a Class A felony, but murdering a woman is only a Class E felony?  Or what if it had a law that sentenced you to 25-to-life for murdering a white, but only made you pay a $10,000 fine for murdering a black?  It would be a horrible injustice, obviously!  But, more importantly, it would be a violation of the Wisconsin Constitution, which says that “all people are born equally free and independent,” entitling all of them to the equal protection of the laws.  Since Section 940.04 treats the unborn unequally, assigning a lower “value” to them under Wisconsin’s homicide laws, a court could use Personhood to strike down 940.04 as unconstitutional.

If 940.04 alone is struck down, Wisconsin would be stripped of its pre-Roe anti-abortion statute… and, when Roe finally ended, there would be no protection for the unborn under Wisconsin law, all thanks to the voters’ decision to pass Personhood.  This is Wisconsin Right-to-Life’s NIGHTMARE SCENARIO:

Now, Wisconsin Right-to-Life acknowledges that this scenario is not likely.  They are right to do so; non-partisan observers agree that it isn’t.  Planned Parenthood and its allies would have to overcome several obstacles to pull this off.  First, they would have to prove standing, which is a legal term meaning you have to show that you, personally, have actually been harmed by a law or person before you are allowed to sue that law or person.  Then, they would deal with the fact that Wisconsin law already treats some murders different than others.  For example, Bopp et al. write, “Murder for hire… is punished more harshly than murder committed impulsively at the climax of a heated argument. Judges would ask the challengers why the differentiation implicit in §940.04 is not simply one more example of this commonplace approach.”  Third… well, I’ll get to that later.  The white paper lists only those first two, and concludes ominously:

[The case] might fail – but it might succeed. Its prospects for success are certainly not trivial. And if it did succeed, the results would be literally fatal for thousands of unborn children in Wisconsin.

It’I hope that the Nightmare Scenario scares you, dear reader.  If so, then I have done justice to Wisconsin Right-to-Life’s position.  That liberates me to discuss why I find that position totally unpersuasive.

The first problem with the analysis by Bopp et al. is that is so one-sided.  Let us suppose the legal team here is completely correct: passing Personhood would create a material risk that 940.04 would be struck down, preventing it from going into effect in the post-Roe world.  Even insofar as that’s true, it ignores the reverse: failing to pass Personhood also entails a material risk that 940.04 would be struck down!  We discussed this earlier.  Personhood is designed, in large part, to protect Section 940.04 from challenges under the Wisconsin Constitution in post-Roe Wisconsin.  Those challenges, to borrow a phrase, might fail – but they might succeed.  Their prospects for success are certainly not trivial!

So, even if we assumed that the white paper’s analysis is correct, it would not the end of the discussion.  Rather, it would be the beginning of a new, critically important discussion: would it be it safer to pass Personhood and trust the courts not to abuse it to strike down anti-abortion laws?  Or would it be safer to leave the Wisconsin Constitution as it is and trust the courts not to abuse it to strike down anti-abortion laws?  This would not be an easy question to answer.  The judges who rule our nation are nothing if not capricious.  We all saw just last month how, even after months of analysis and speculation, every single legal expert in the nation got their prediction wrong in NFIB v. Sebelius (aka the Obamacare case).  There is probably a case to be made for either side of the question.  For my money, I think 940.04 is in considerably more danger without Personhood than it would be with Personhood.  But, hey, I’m no lawyer.  Unfortunately, Wisconsin Right-to-Life does not devote one scintilla of ink to this question, so the arguments of their lawyers are not available to us.  The claims coming from Personhood Wisconsin (and its own bag o’reputable pro-life lawyers) about the risk of a constitutional challenge to 940.04 stand unanswered.

I could end my analysis here.  I believe I have made a compelling case that Wisconsin Right-to-Life’s case against Personhood relies on a succession of unlikely speculations about the legal fate of Personhood.  This speculation is wrapped, in turn, in a thick layer of obfuscatory arguments, which aim to prove points that everyone in the debate already admits.  Against all this, Bopp et al. practice a studied indifference to a major threat to Wisconsin’s post-Roe abortion law in the form of the Wisconsin state Constitution – in spite of the fact that this threat forms the strongest reason put forward by Personhood Wisconsin in favor of the Amendment.  The white paper is incomplete at best.  I have shown that, while there are some risks associated with passing a Personhood Amendment (including the Nightmare Scenario), these risks are balanced against other risks (in my opinion, greater risks)  associated with not passing a Personhood Amendment.  I have shown, in short, that a rational Wisconsin pro-lifer can – and probably should  – support the Personhood Amendment.  At any rate, even when we assume that the white paper’s analysis of the Nightmare Scenario is basically correct, Wisconsin Right-to-Life’s active work in opposition to the Personhood Amendment appears to be an unjustifiable disservice to the pro-life community of Wisconsin.  If that conclusion satisfies you, you can stop reading now.

However, I don’t think that’s going far enough.  I do not believe the Nightmare Scenario is nearly as likely as Wisconsin Right-to-Life believes it to be.  The white paper does not merely ignore the benefits of the Personhood Amendment; I believe it significantly exaggerates the risks.  Given the sterling credentials of its authors, this exaggeration is no doubt inadvertent.  Nevertheless, if I am correct, it becomes very difficult – perhaps impossible – to rationally defend a pro-lifer’s opposition to the Personhood measure in Wisconsin.

That brings us to the end of this post.  You may have noticed that I promised five graphics in the title, but there were only four.  That’s because graphic #5 is coming up in my next and (I’m serious this time!) final post, where I will discuss my contention that the white paper gets the risks of Personhood wrong.

This post deals with Wisconsin Right-to-Life’s public claims about Personhood.  For a discussion of the (substantially different) arguments employed by its legal white paper, please see the later posts in this series.

I want to lead this post off by noting, for the record, that we are all allies in the pro-life movement, and that Wisconsin Right-to-Life is emphatically a part of that movement.  The organization has, in many cases, led the battle against abortion in Wisconsin, and has some very significant victories in its cap, including the Supreme Court milestone FEC v. Wisconsin Right-to-Life.  I have it on good authority that the organization remains committed to the eradication of abortion in Wisconsin, without exception, without apology (for there can be no apology in protecting the innocent).  Even if I didn’t have an friend in the organization who can speak for WRtL, the organization’s record speaks for itself.

I want to make the same statement about Jim Bopp, who will be mentioned frequently in my next post, because WRtL cited him to me as the lead author of their legal white paper on Personhood.  I am young, and missed the pro-life battles of the 1980s, but I’m told that Mr. Bopp was there, crusading for the pro-life movement, always finding a novel way to advance a difficult cause – no matter how humbling the strategy. I know that he himself has worked on model legislation that would have enacted Personhood at the federal level, so he can hardly be counted an enemy of the Personhood movement. That landmark Supreme Court decision I mentioned above?  Bopp was the lawyer who represented Wisconsin Right-to-Life in its free speech case against the FEC. Today, he mainly shows up in my mail in connection with the many clients – including the Susan B. Anthony List – whom he is defending against rapacious lawsuits by the vanguard of abortion.

So I ask all my readers to understand that, while I have sometimes become angry while researching this series, the following post is written in a tone of bafflement, not accusation.  These are not Pro-Lifers In Name Only.  Indeed, they are more than friends: the rest of us, especially the young who have not yet struck many blows for the cause, are manifestly in their debt.

However, the reasons they have articulated for opposing Wisconsin Personhood are not merely strange – they are highly questionable and deeply troubling.  As I described in my last post, after reading the reasons against Personhood posted on WRtL’s website, I had a lot of questions, and, eventually, WRtL sent me its full legal white paper allegedly justifying its anti-personhood position.  I do not believe that it does, but I’ll get there in my next post.

Before I go through the white paper, I wish to make quick work of the Personhood information displayed on Wisconsin Right-to-Life’s website.  Some of this information is grossly misleading, bearing faint resemblance to the arguments made in the organization’s legal white paper. Overall, it represents a profound disservice to the pro-life public Wisconsin Right-to-Life serves.  By greatly exaggerating the risks of a Personhood Amendment, Wisconsin Right-to-Life makes it impossible for the individual pro-lifer to make a fair judgement about the initiative.  The website begins by claiming:

1. A Personhood Amendment would cancel out our current abortion ban.  Wisconsin is fortunate to be one of only a handful of states which already has a law that prohibits abortion… Once Roe v. Wade is overturned, this law would immediately go into effect and protect unborn children by shutting down abortion clinics. A personhood amendment would be harmful because it would make this law that prohibits abortion invalid.

The italicized portion is an absurd exaggeration of the very cautious opinion Wisconsin Right-to-Life’s lawyers actually put forward in their white paper:

A defendant seeking to assert this position in a criminal prosecution under § 940.04 would face serious standing issues… To be sure, their argument would confront a formidable substantive objection… [The argument] might fail – but it might succeed. Its prospects for success are certainly not trivial.

As we will discuss later on, even the white paper’s cautious opinion that Personhood poses a threat to Wisconsin’s existing abortion law is considerably overstated.  However, even if we accept the white paper’s opinion, there is a yawning abyss of doubt between the lawyers’ claim, “Its propsects for success are certainly not trivial” and the claim of certainty WRtL presents to the public, “[Personhood] would make this law that prohibits abortions invalid.” Next:

2. A Personhood Amendment would not protect Wisconsin’s unborn children… [W]ithout passing an entirely new law that prohibits abortion, a constitutional amendment in and of itself would not stop a single abortion.  Some people mistakenly believe that existing laws on homicide and manslaughter would cover abortion following passage of a personhood amendment.  However, these laws were not written with the unique medical situations which apply to abortion [sic].

We will discuss in Part IV the “mistaken” belief that homicide and manslaughter laws could cover abortion in a post-personhood world.  Let it suffice to say that abortion being covered by homicide and manslaughter laws is more likely than the nightmare scenario WRtL proposed in paragraph one.  Much of the rest of paragraph two is actually just a restatement of paragraph one, so I have omitted it.

However, I must point out that the sentence about “unique medical situations” is, legally speaking, gibberish, too vague for WRtL’s meaning to be remotely comprehended.  One interpretation of this passage – perhaps the only possible interpretation – is that Wisconsin Right-to-Life is endorsing a life-of-the-mother exception to anti-abortion laws, like the one contained in the state’s imperfect existing abortion statute, Section 940.04.  The pro-life movement, as a whole, does need to sit down and have a conversation with itself about life-of-the-mother exceptions, because there’s a lot of disagreement about whether and how they should operate.  However, if that’s what this passage is about, then Wisconsin Right-to-Life is no longer doing a legal analysis about why Personhood is dangerous for unborn babies – it is instead announcing WRtL’s private belief that some unborn babies should not be fully protected by the law.  The assertion is certainly unsupported by anything in the white paper, which has no mention of “unique medical situations,” and many of those who look to Wisconsin Right-to-Life for guidance would be outraged to learn that they had been misled into supporting a life-of-the-mother exception.

Perhaps there is some other way of interepreting this passage.  I am open to enlightenment from WRtL or anyone who wants to post in the comment box at bottom.  For now, moving on:

3. The cost of enacting a Wisconsin Personhood Amendment would be in the millions of dollars. Wisconsin Right to Life estimates it would cost at least $4 million or more to win a ballot measure.

This is not a legal issue, so it is not discussed at any length in the white paper.  It may well be true.  However, if Wisconsin Right-to-Life is worried about wasting its limited resources on an expensive measure, it doesn’t have to lift a finger.  But, rather than getting out of Personhood’s way and letting its supporters decide what pro-life causes to support, Wisconsin Right-to-Life is spending significant sums of money (at least thousands of dollars) fighting against Personhood!  If Personhood is a doomed enterprise, WRtL should let Planned Parenthood’s massive fundraising organization spend its own money killing it – not waste pro-life resources doing PP’s dirty work!

4. Attorney’s fees would be awarded to Planned Parenthood.  Should a personhood amendment succeed, expert national and state legal authorities who advise Wisconsin Right to Life believe it would be challenged in court and struck down.   Organizations like Planned Parenthood who would challenge the amendment would be awarded thousands of taxpayer dollars in legal fees.

This is also a considerable exaggeration of the white paper.  The white paper goes through two pages walking through many reasons why it is not likely that Personhood opponents could even launch, much less succeed, at a Personhood challenge in federal court.  Eventually, it reaches this conclusion: “The challenge hypothesized would face an uphill fight, but it would be neither frivolous nor hopeless.”

This is even worse than what we saw in paragraph one.  There, WRtL merely grossly exaggerated what its lawyers concluded. Here, WRtL is taking what its lawyers explicitly label unlikely and declaring that it will certainly happen. It then cites the authority of the very lawyers who refused to commit to such an extreme claim.

It is possible that attorney’s fees could be awarded to Planned Parenthood.  As we will see, I agree with the white paper’s conclusion on this point: it would be an uphill fight for the abortion industry, but it would not be hopeless.  This is a risk that is well worth considering before backing Personhood. But Personhood is simply, factually, not the slam dunk for Planned Parenthood that Wisconsin Right-to-Life claims it is – and Wisconsin Right-to-Life’s lawyers agree with me!

Incidentally, I feel compelled to inject a bit of unsourced, digressionary personal opinion here: when pro-abortion lawyers go to war, they bring Planned Parenthood’s entire billion-dollar baby-smashing machine with them… not to mention the ACLU’s $100 million, the NOW’s few millions – heck, Planned Parenthood makes some $3 million a year just from doing abortions in Wisconsin alone (overall, its Wisconsin clinics rake in $15.7 million, according to its 2009 IRS form 990).  Given the already deep pockets of our enemy, I do not think that the threat of a bad judge putting another few hundred grand in the abortion machine’s pockets would be a crippling blow to the pro-life movement in Wisconsin.  Since the probability of that happening is not high, I consider this an acceptable risk.  The individual pro-lifer will have to make up his or her own mind, and might decide that I’m wrong – but it’s important that that decision is based on good information, which is not available on Wisconsin Right-to-Life’s website.

And, no, “digressionary” is not a word.

In my next post in this series, I will examine the actual claims made by Wisconsin Right-to-Life’s lawyers, led by Mr. Bopp.  Their claims are far less outrageous than those posted on WRtL’s website, but remain baffling in several places, as I will discuss therein.

In the challenger’s corner, scrappy Pro-Life Wisconsin is working to pass an amendment to the Wisconsin Constitution that would recognize the equal rights of all human beings, from conception to dotage.  In the champion’s corner, heavyweight Wisconsin Right-to-Life, standard-bearer for the pro-life cause, official affiliate of the National Right-to-Life Committee, and oldest pro-life org in the state, is campaigning to… block the law giving equal rights to the unborn.

What?

I’ve written about this controversy before, but, even among pro-lifers, this is a fairly obscure conflict, so I’ll begin my series on Personhood Wisconsin with a recap.

Wisconsin, like a few other states, has a state law forbidding abortion.  The only exception is if three physicians deem abortion “necessary to save the life of the mother.”  All other abortions are punished as minor felonies, with a maximum of six years in prison for the abortionist.  (The mother is immune from prosecution because of a separate state law.)  This makes abortion about as serious, under Wisconsin law, as battery or possession of child pornography.  The Wisconsin law defining abortion as a minor felony is called Section 940.04.  Remember that number, because I’m going to use that name throughout the rest of this series.

Of course, as in every state, Section 940.04 is effectively off the books right now, because Roe v. Wade and Doe v. Bolton guarantee the mother’s right to abort her child at any point in pregnancy for virtually any reason, everywhere in the United States.  Even though Section 940.04 is still officially in place, no court will enforce it.  If a police officer arrested the abortionist down at the Appleton Planned Parenthood for performing abortions, the court would say, “Yes, the defendant has violated state law, but Wisconsin state law violates the U.S. Constitution.  See Roe.  Case dismissed.”  In legal parlance, Section 940.04 is unenforceable for as long as Roe v. Wade remains the recognized law of the land.

Abolitionists in Wisconsin, then, like abolitionists in all states, have three main concerns: (1) overturning Roe, (2) undermining Roe, and (3) preparing for the post-Roe world.  We overturn Roe by getting good judges on the Supreme Court, who either recognize the personal rights of all human beings under the 14^th Amendment or, at the very least, recognize that the Constitution certainly confers no positive right to abortion. (That often means getting in bed with the Republican party, which can be very hard for some in the movement.) We undermine Roe by putting a human face on the unborn child.  We use the most egregious barbarisms of the abortion rights movement against it, chipping away at the foundations of Roe by forcing Americans to confront an ideology that is comfortable defending partial-birth abortion, assailants who cause pregnant women to miscarry, and even straight-up infanticide.  This confrontation leads Americans to notice what they’ve always known: unborn children are not “potential life” without autonomy or rights , but actually the most vulnerable members of society, demanding our sympathy and protection, whether they’re eight months along or still single-celled.  Finally, we prepare for the post-Roe world by putting in place state-level protections against abortion.  We maintain bans where we have them, expand them where we don’t, and fortify them against interference by the courts or special interests.  The objective, for abolitionists, is twofold: (1) to have the deliberate and directly intended killing of any human being at any stage of development universally condemned as murder, and (2) to institute a humane medical system that treats both mothers and their children as patients.

The Personhood Amendment is an attempt to address all three concerns with one change to the Wisconsin Constitution.  Article I, Section 1, which is about equal protection of the laws, would be amended.  The proposed text is below; I have put Personhood’s additions in bold and Personhood’s edits to the current text in strikethrough:

All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.  As applied to the right to life, the terms “people” and “person” shall apply to every human being at any stage of development.

The Amendment is intended to operate on three levels, which I will enumerate from weakest to strongest.

First, Personhood provides a faint opportunity to directly challenge Roe v. Wade.  Wisconsin Personhood supporters state that the amendment “is not intended, or worded, as a challenge to Roe, nor is it an attempt to define personhood under the 14^th Amendment,” but, as Wisconsin Right-to-Life points out, their intentions do not necessarily prevent the challenge.  Roe’s logic (as well as the logic of the subsequent Casey decision) is built on the Supreme Court’s finding that unborn children are not people, and therefore have no rights.  Wisconsin law, post-Personhood, would state that unborn children are people, and therefore have rights.  That’s a contradiction, right?  When laws contradict, there’s room for a court case.  Now, in reality, because of federalism, precedent, the rules of legal construction, and half a dozen other things, it is unlikely that any lawsuit would advance to a meaningful level at all, and extremely unlikely that it would advance to a friendly Supreme Court that would actually overturn Roe.  The most likely outcome of a case would be dismissal.  The next-most-likely outcome would be that the courts decide the Personhood Amendment can’t apply to unborn children until Roe is overturned by some other means, leaving Wisconsin law exactly as it is today.  In the latter case, Planned Parenthood would possibly win a few hundred thousand dollars in court costs.  Planned Parenthood has tried to paint Personhood as an immediate, blanket ban on abortion, and I wish they were right, but that’s actually the least likely outcome of the Amendment.  For this reason, I believe that Personhood’s supporters should not even pursue this route; if a Roe vs. Personhood court battle is launched, let it be launched by abortion supporters trying to weaken Personhood, not Personhood supporters trying to attack Roe.

Second, Personhood puts a human face on these human beings.  As a friend of mine put it to me once, “The law is a teacher.” What we put in our lawbooks shapes our culture. If Personhood were passed, the state of Wisconsin would solemnly proclaim, in its key legal text, that the unborn have rights, that all men are created equal, no matter how much the unelected philosopher-kings who run the courts insist otherwise.  In doing so, the law would affirm and reinforce what Wisconsonites already know, at a gut level: that abortion, no matter how you justify it, is the killing of a human person.  It would settle one of the most important parts of the abortion debate for the purposes of legislative deliberations, and strengthen the pro-life intuitions of the electorate.  These effects of Personhood are largely intangible, but they are arguably the most important element in creating a culture of life, rather than just a legal code enforcing it.  In pursuing intangibles, Personhood maintains the longstanding pro-life strategy of scoring symbolic victories. Earlier examples include the Partial-Birth Abortion Ban Act, which prevented exactly zero abortions, Webster v. Reproductive Health Services of Missouri, which established a state’s right to claim that human personhood begins at conception (as long as it had no other legal impact), and, if we’re being honest, essentially every abortion “restriction” American pro-lifers have passed since the Casey ruling.  For twenty years, the pro-life movement has sought to cultivate Americans’ moral sense about abortion more than it has tried to legally restrict abortion. Personhood advances that effort.

Third, and most importantly, Personhood prepares Wisconsin for the post-Roe world. Sometimes, pro-lifers believe that overturning Roe will be the end of our battle.  In fact, the fall of Roe will not outlaw abortion; it will simply return the issue to the states to decide.  Abortion rights advocates will wage a fifty-front war, in the courts and legislatures of every state, in order to preserve their “right” to extinguish the unborn.  Wisconsin’s anti-abortion law – Section 940.04, which I discussed above – is already imperfect.  It makes abortion no more serious than embezzlement, and it treats the unborn child like a virtuous tumor, not a human patient.  But it’s worse than that: in a post-Roe world, Section 940.04 is not safe from the Wisconsin court system!  Without the Personhood amendment, Article I, Section 1 of the Wisconsin Constitution appears to imply that human rights begin at birth.  Moreover, the Wisconsin Constitution uses right-to-privacy language (Article 1, Section 11) that “mirrors” a section of the U.S. Constitution – the same section that allowed the U.S. Supreme Court to invent a Constitutional right to abortion.

It gets even worse, dear readers: Wisconsin has a law (Section 995.50) that specifically guarantees the right to privacy – which activist judges throughout the nation have falsely construed to include abortion.   When you think that anti-abortion laws invade a mother’s privacy, and your state Constitution doesn’t appear to protect the rights of the unborn, what’s going to happen?  As everyone in Wisconsin knows after the David Prosser election, the rule of law on the Wisconsin Supreme Court is currently maintained by only one vote.  If Roe should fall when Wisconsin happens to have a pro-abortion governor like Russ Feingold and the Supreme Court just happens to be in the hands of anti-fetal judges at the time – a strong possibility, given Wisconsin’s basic political geography – the Wisconsin Supreme Court will strike down Section 940.04 all over again, creating a new and unlimited right to abortion in Wisconsin under the Wisconsin Constitution.

This is not some alarmist prediction designed to convince Wisconsin voters to back Personhood.  This is a grave and ongoing threat to the unborn of Wisconsin.  Personhood is one way to patch the hole in Wisconsin law and fix the threat, but, even if Wisconsin voters reject Personhood, this is a real problem, and Wisconsin pro-lifers must find some way of addressing it.  Wisconsin has one of the nation’s stronger anti-abortion statutes in Section 940.04, but Wisconsin also has one of the worst state constitutions in the nation for the unborn.  The state is deeply underprepared for the post-Roe world.  Personhood would solve the problem quickly and simply: by guaranteeing that human rights begin at conception, Wisconsin courts would have no choice but to accept them, protecting the unborn from the pro-life movement’s fatal mistake of being content with Section 940.04 as it stands today – alone.

That is the case for the Wisconsin Personhood Amendment: it addresses all three concerns of the pro-life priorities, and it wins a couple of critical battles that other strategies have not been able to deliver to abortion abolitionists.

Moreover, the Personhood Amendment is true: people are people, no matter how small, and Personhood fixes Wisconsin law so it says so.  This is not insignificant.  A victory for the truth is a victory in itself.

Now, there are arguments against Personhood.  The strongest argument is that there’s a reasonable chance that Planned Parenthood would sue, win in federal court, and pick a couple hundred thousand dollars in attorneys’ fees from our pockets.  Furthermore, although I have argued on behalf of other, more aggressive Personhood initiatives (like Mississippi’s failed Initiative 26), pro-life luminary James Bopp has argued that measures more aggressive than Wisconsin’s carry much higher risks to pro-lifers with much more limited rewards.  While I don’t agree with his conclusions (thanks, in large part, to Robert Muise’s reply), Bopp raises prudent arguments that merit due consideration, when they obtain.  They do not, however, apply to Wisconsin, where, unlike Mississippi, supporters are not seeking a frontal assault on Roe and there is no risk of so-called “implied repeal”.  Others have suggested that it is simply unwise for our movement to become openly and insistently abolitionist, because to do so would place us too far outside the political mainstream (I won’t name names).  I consider that position shameful and offensive, but, as I often remind myself, slavery was abolished by a moderate, self-interested politician named Abe Lincoln.  Our movement needs the cautious as much as it needs the reckless, and their objection is worth listening to.

However, in the particular circumstances of Wisconsin, it seemed to me at first that the benefits of passing Personhood clearly outweighed the risks.  So I was surprised to learn that Wisconsin Right-to-Life, the state’s pro-life establishment, was not merely withholding support from Personhood (which would have been unfortunate, but understandable, given WRtL’s limited resources), but actually campaigning against Personhood.  It didn’t help that the reasons they gave on their website appeared to be, legally speaking, poppycock.  I resolved to find out what WRtL’s thinking is, so I wrote to a close friend of mine who has worked closely with WRtL for a long time and asked some (I admit) rather pointed questions.  Eventually, after some conversations, the organization forwarded me its legal “white paper” discussing its opposition to Personhood.  I read it, thought about it for a few weeks, read it again, wrote about it for a couple of weeks, ran it by some respected friends, rewrote for a couple more, and finally reached some conclusions.

But that’s the subject of my next few posts.