The Life at Conception Act, backed by 124 Republicans in the U.S. House, declares that every human being has a right to life, including “each and every member of the species homo sapiens at all stages of life.” It’s a highly controversial view, to state the obvious, but I think it is correct (and have argued as much at length). The political backlash to the bill ought to teach pro-life politicians that there is more to legislating than stating a principle.
The legislation was languishing in obscurity until the Alabama Supreme Court ruled that embryos stored at fertility clinics have the same protection as children under the state’s wrongful-death law. Republicans around the nation rushed to distance themselves from the decision, which called into question whether in vitro fertilization could continue in the state. That’s when Democrats noticed the federal bill and started to say it would outlaw IVF nationwide, as well as nearly all abortions.
The strange truth is that the bill, as written, would not outlaw anything. It starts by declaring that all human beings, from their earliest moments, have a right to life — and then it stops. It does not answer any of the “what then” questions. Does the principle entail that abortions are always, sometimes or never permissible to save a mother’s life? The bill doesn’t say.
It does not lay out what penalties apply for violating the right to life, or even what counts as a violation. It does not say that existing laws that punish crimes against “persons” or “children” should be read to cover human embryos or fetuses. It does not instruct police, prosecutors or judges to do anything at all. It is closer to a “sense of the House” resolution than to a binding law.
A decade ago, pro-life activists tried to pass “personhood laws” with teeth in various states. They tried to amend the North Dakota Constitution to say that “the inalienable right to life of every human being at any stage of development must be recognized and protected,” and the Colorado Constitution to say that all references to “persons” and “children” would include “unborn human beings.” Voters said no in both places, as they had a few years earlier in Mississippi.
Those proposals would have had legal effects, unlike the Life at Conception Act. They did not, however, spell out what those effects would be. That coyness turned out to be a political vulnerability. The opponents of these initiatives, drawing arguable inferences, said they threatened IVF and even some forms of contraception. The failures of this approach dimmed most pro-lifers’ enthusiasm for personhood laws for a time. Interest revived once the Supreme Court overturned Roe v. Wade and thereby gave states more authority to protect nascent human lives.
This revival rested on a misreading of the political landscape. The justices did not create the conditions for total victory by pro-lifers (even assuming we all agreed on what that would look like). They made it possible to begin what will, even on the most optimistic scenario, be a long struggle to persuade Americans to change our laws and culture.
But even if an expansive pro-life legislative agenda were achievable, the right way to put it into law would be to be specific: to say under what circumstances abortion would be allowed or, to raise the specific subject of the Alabama case, what recourse should be open to people who allege that a fertility clinic’s negligence caused the death of their embryonic offspring.
Personhood laws instead attempt a maneuver that social conservatives rightly opposed in the case of the Equal Rights Amendment: Get the law to endorse an abstract principle so that someone, probably the courts, can later draw out policy implications that voters and legislators would not have supported. People who would never have endorsed drafting women into the military — one of the leading anti-ERA scenarios in the 1970s — would wake up one day to find that they had signed on without realizing it.
The invitation of personhood laws is the same: Put this into the legal code, and then we’ll all find out what it means together. Or find out what the executive and judicial branches can make it mean. We have gotten more and more used to this kind of legislative blank check. But it is not how lawmaking should happen, especially in a democracy and even more especially on intensely controversial issues.
The Life at Conception Act, it is true, avoids this problem of making sweeping but undisclosed changes. But that’s because it only pretends to be meaningful, which is its own perversity. The Republicans who have attached themselves to it are taking a political risk — a big one, for the lawmakers in swing districts — for a bill that wouldn’t do anything.
