The Amendment

The Wisconsin Personhood Amendment reads as follows:

Rep. Andre Jacque_jpg_475x310_q85(2013 AJR 49, authored by State Representative André Jacque)
Wisconsin Constitution. Article I. Declaration of Rights.

Resolved by the assembly, the senate concurring, that:
Section 1 of the constitution is amended to read:

Equality; inherent rights. Section 1. All people are 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.

 Summary of the Amendment

The Wisconsin Personhood Amendment (2013 LRB 0130/1) would amend the Wisconsin Constitution to apply personhood rights to preborn children at all stages of development.  Authored by Representative Andre Jacque, the amendment extends the inalienable right to life already found in the Wisconsin Constitution to all preborn children from the beginning of their lives.  It seeks to end abortion in Wisconsin, not to regulate or restrict it.  It seeks to end all violence toward preborn children in Wisconsin – surgical, chemical, experimental, etc. – at all stages of development.

From a pro-life perspective, the Wisconsin Constitution contains a glaring error at its outset.  In specifying the beneficiaries of its human rights, it leaves out the preborn.  It applies rights to only those people who are “born.”  Representative Jacque is proposing a minimal but absolutely essential correction, a personhood amendment, to make the Wisconsin Constitution cover all people, every person, at any stage of development. The proposed amendment (LRB 0130/1) simply substitutes the inclusive personhood definition for the word “born.”  That definition is as follows:  As applied to the right to life, the terms “people” and “person” shall apply to every human being at any stage of development.  Such a definition is indispensable to spreading the protective cover of Wisconsin’s constitution over all its citizens.

Why is a constitutional amendment, rather than a statutory change, necessary?  Should Roe v. Wade be overturned someday and the abortion issue remanded to the states, an activist Wisconsin Supreme Court could use the word “born” in our current state constitution to deny the right to life of the preborn by interpreting an independent right to abortion in that document.  In so doing, the court could nullify any present or future pro-life laws in our state. The changing makeup of the Wisconsin Legislature could also jeopardize any pro-life laws in our state.  Every two years our state election process determines the majority party in Madison.  Legal protection of the preborn should not (and must not) be contingent upon which party controls the state legislature.  The right to life should not be subject to the whims of a politicized supreme court or an ever-changing legislature.

Pro-Life Wisconsin’s proposed personhood amendment is not intended, or worded, as a challenge to Roe, or as an attempt to define personhood under the 14th Amendment to the United States Constitution.  It seeks only to bring into the Wisconsin Constitution a true definition of human life as endorsed by Wisconsin citizens speaking through the amendment process, thus making the highest law in our state cover all people, every person, at any stage of development. We recognize that its protections cannot be fully effective as long as Roe remains law, but we believe a proper definition of personhood should be in place should Wisconsin be freed from the effects of that noxious decision.

The proposed constitutional amendment is not a risk to our current, pre-Roe abortion law (Section 940.04, Wisconsin Statutes) by “implied repeal” or otherwise. The concern that 940.04 would be impliedly repealed by the personhood amendment is alleviated by case law.  In State of Wisconsin v. Glenndale Black, 188 Wis.2d 639, 526 N.W.2d 132 (1994), the Wisconsin Supreme Court was not persuaded that the legislature intended to repeal 940.04 when it enacted the Roe-conforming 940.15.  It said, “Implied repeal of statutes by later enactments is not favored in statutory construction.”  For recent law on the subject pertaining to a later constitutional amendment rather than a later statute, State of Wisconsin v. Phillip Cole, 2003 WI 112, 264 Wis.2d 520, 665 N.W.2d 328, is instructive.  The Court said in that case that it did not matter whether a statute predated or postdated a constitutional amendment in deciding the issue of the statute’s constitutionality.  It found that an old statute restricting concealed carry was not repealed by a later amendment to the Wisconsin Constitution guaranteeing the right to keep and bear arms.

Should Roe be overturned, it is essential that Wisconsin law protect all human life from the moment of conception.  Wisconsin Statutes 940.04 is marred by an obvious loophole – a “life of the mother” exception.  Many abortionists believe that the very condition of pregnancy itself is a life threatening condition.  Consequently, a life of the mother exception can be and is used as a massive statutory loophole through which to drive abortion on demand at all stages of human life and in all circumstances.  This exception calls into question the efficacy of 940.04 in prohibiting abortions.  Only by enshrining the right to life in our state constitution will preborn children be afforded full and lasting legal protection.

Wisconsin Right to Life’s central argument against introduction and passage of a personhood constitutional amendment is that it would overturn by “implied repeal” Wisconsin’s pre-Roe criminal abortion statute. The Wisconsin Legislative Council (WLC) concludes the opposite.  The WLC, a non-partisan service agency that provides legal services to the Wisconsin Legislature, drafted a memo for Representative Jacque addressing the implications of the Wisconsin Personhood Amendment (LRB 0130/1) on Wisconsin’s pre-Roe criminal abortion law (Wis. Stats. 940.04).

Citing United States and Wisconsin Supreme Court case law, the WLC memo states that it is unlikely that 940.04 would be vacated in its entirety by implied repeal.  Only those sections of 940.04 that may conflict with the equality provision in the amendment – the life-of-the-mother exception and the differing penalties for killing a quick (viable) versus non-quick (unviable) child – would be subject to examination for implied repeal.  And removing these inequitable sections would only strengthen 940.04!

In a memo to his fellow legislators, Representative Jacque said, “I therefore agree with the WLC when it states in its memo that ‘the statute appears to complement rather than conflict with the proposed constitutional amendment, insofar as the amendment expands the inherent right to life recognized in the Wisconsin Constitution to unborn persons and the statute provides a basis for criminal liability for harm to such persons.’”  Again, it is clear that LRB 0130/1 would not harm Wisconsin Statutes 940.04 by “implied repeal” or otherwise.

The Wisconsin Personhood Amendment has been endorsed by: Wisconsin Family Action; Personhood USA; American Life League; Charles E. Rice, Professor Emeritus of Law, University of Notre Dame; Kevin O’Brien, Men of Christ; Catholics United for the Faith, St. Gregory VII Chapter, Milwaukee; Walter Hoye, Issues4Life Foundation; Jason Jones, I Am Whole Life; Alan Keyes, former U.S. Ambassador to the United Nations; Rick Santorum, former U.S. Senator; Joe Scheidler, Pro-Life Action League; and Matt Trewhella, Missionaries to the Preborn.