The Logical Shambles of Roe V. Wade
Last updated 4 April 2015
Copyright 2005, Rick Harrison
Note: Copyright permission is given for anyone to use the text in any way to fight abortion.
digital image by Felix Just, S.J.
I. The Constitutional Argument
The question of a child’s right to life is so absurdly simple and intuitively clear that one marvels that it should have arisen at all. Should we or should we not consider our own unborn children persons under law? This odd question, one that it had never occurred to most of us to ask until 1973, only becomes necessary because of the sparse and ambiguous wording of the United States Constitution. Consider the important and alarming fact that the relevant amendments to the Constitution (the Fifth and Fourteenth), which restrict the right to life to “persons,” do not define the term ‘person’ at all. These two amendments are the only sections of the Constitution that speak to the right to life question, and they say nothing whatsoever about unborn children (or invalids on life support, or humans altered by genetic engineering, etc.). One phrase in one sentence, duplicated in two amendments: that’s all we have in the highest legal authority in the land to govern the application of the most important issue of law: the right to life itself. Obviously we need an amendment to the Constitution to correct this glaring deficiency. This will be the first thing I say in this essay (monograph really) and the last.
Constitution of the
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [My emphasis]
All persons born or naturalized in the
On the surface, the Constitution does not directly say who is or is not a person. However, if there was a way that we could through proper interpretive methods show that the Constitution indirectly implied the unborn to be persons, abortion would no longer stand the constitutional test. The right to life of the unborn child, as a person, would then outweigh the mother’s right to the liberty to have the abortion (her “right to privacy” as it is now sometimes called). A mother’s right to liberty to control her own body is, of course, legitimate, but so is a person’s right to life legitimate. Should these two rights come into conflict, a court of law must adjudicate the matter to see which right prevails. One assumes that the right to life, the precondition for enjoying any rights at all, would always prevail over all the other subordinate rights, no matter how important they may legitimately be held to otherwise be.
In this essay I argue that a proper interpretation does argue for the unborn child’s legal personhood and right to life under the Constitution as amended. I also argue that we need to amend the Constitution to clarify the language in order to prevent further mistaken interpretations by the Supreme Court. I believe that proper interpretive methods show it more likely than not that the framers of the Constitution and its amendments considered unborn children to be persons with the same right to life granted to everyone else.
By “proper interpretive methods,” I mean that such questions cannot be decided on the basis of politics, on the basis of what resolves pressing social concerns, or on the basis of what reflects popular opinion. Interpretive extraction of the nonliteral implied meanings of the language of the Constitution is only properly accomplished by analysis of linguistic, cultural, and historical indicators relevant to the intentions and beliefs of the authors of the Constitution and its amendments.
This question of who has and does not have the right to life is properly determined by reference to the Constitution alone because the Constitution is the ultimate guarantor of our right to life, as well as the mother’s right to liberty/privacy. Politics, personal preferences, and social ideology—and even the history of federal and state abortion law outside the timeframes when the Constitution and the fifth and fourteenth amendments were enacted—need not apply. The right to life is strictly a constitutional question. Legislation may be passed to define the term “person” or to say that human life begins at certain points in the developmental process, at conception or at a certain number of days, weeks, or months, but if that legislation is challenged in court as unconstitutional, the question goes right back to the Constitution for resolution. If the Constitution is held to be silent then these legislative initiatives may stand the test, but where the Constitution is not silent, they must pass the constitutional test.
In theory, the Supreme Court can endorse input from the disciplines of science and religion as acceptable sources of clarification on the question of legal personhood for the unborn child. This was, in fact, largely done in Roe v. Wade where Justice Blackmun and the Supreme Court did look in those directions for guidance. But the Court found no definitive consensus within science and religion on the question of when the developing unborn child is a person worthy of the right to life. The Court saw no consensus either at the time the Constitution and its amendments were enacted or even at the time of the decision in Roe v. Wade in 1973.
Still, the decision in Roe v. Wade did teach us it that science or religion can, in theory, materially, even critically, inform the abortion debate. The history of religion can reveal what the founding fathers intended the Constitution to say about the right to life, and a present consensus in religion can show us what we should amend the Constitution to say about the right to life today. Science can shed light on how we should read the Constitution’s right to life clause by revealing when a second living human being is present in pregnancy.
Science long ago irrevocably established that life begins at conception and that the child’s genetic code is different from its mother’s, revealing that two living human organisms are present during pregnancy, not just one. This is really as far as science can legitimately go towards offering input on the legal status of the unborn child. To go further to argue the question of whether a living human organism should be considered a living human being or living human person with rights under the law is not really the purview of science, but rather a task for legal philosophy and religion.
Justice Blackmun’s mistake in evaluating science’s input on the right to life question in Roe v. Wade was to define the content of science, not by referencing the limitations of science affirmed in science’s own charter, but by what individual scientists were saying. When a scientist deigns to involve his or herself in politics, philosophy, or religion, the mere fact of a scientist’s involvement does not transform a political, philosophical, or religious question into one of science. Nay-sayer scientists who say we should not consider a zygote or an early fetus a human being or human person are stepping outside of the charter of science to do philosophy or religion. The input of these dissident scientists is therefore irrelevant to the position of science itself. Strict science unadulterated with the scientist’s personal philosophical or religious views has said all it can say on the subject of the unborn child: “the unborn child from the moment of conception is a living human organism.” There is a full consensus in science on that, and that is as far as science can go on the matter.
There is now also a clear consensus within religion on the question of abortion, a consensus that was much less clear in 1973 when Roe v. Wade was decided. Religious faiths holding that abortion is wrong, that it is in fact a great intrinsic moral evil, now represent an overwhelming majority of the U.S. population. Thus, the consensus on the issue of the child’s right to life within science and religion that Justice Blackmun said was missing at the time the Constitution was written is now genuinely present. In religion it is not yet unanimity, but it is a strong consensus.
The U.S. Constitution is therefore out of date in regard to science and religion’s input on the question of right to life for the unborn child. An amendment to the Constitution granting the unborn child personhood and the right to life is called for to bring right to life law into conformance with these two major determining factors of science and religion, factors recognized by the Supreme Court itself in Roe v. Wade.
In the meantime, what is left, of course, is the question of the input from legal philosophy, more specifically a coherent and convincing interpretation of the Constitution’s right to life clause based upon indirect indicators. The question of the right to life of the unborn child in the immediate present remains exclusively a matter of interpreting the present Constitution.
So, what was the definition of ‘person’, if any, intended by the framers of the Fifth and Fourteenth Amendments to the Constitution of the United States, the authors and the legislators who ratified those amendments in 1791, and 1868 respectively? To answer this question, courts must consider the predominant combined weight of reason, logic, legal precedent, and historical context—and without contradicting the plain language of the Constitution as written. Considerations of historical context can include the science of the day and the religious views of the legislators at the time, both of which are relevant to discovering the legislators’ intentions regarding the meaning of their language on right to life in the constitutional amendments.
Considering that there is less than half of a sentence on the subject of right to life in those amendments to the Constitution, and that ‘person’ is not defined there at all, nor are unborn children ever mentioned, the first thing to note is that we more truly need a constitutional amendment before there can even be a well-grounded judicial interpretation. The existing sparse language in the Constitution is clearly inadequate.
What this means is that all the legal precedents on abortion originating from the state and federal courts that the Supreme Court reviewed in Roe were inadequately supported by the Constitutional text in the first place. The fact that the prior laws on abortion and corresponding court decisions have been fully mixed over the preceding decades is further indication that the Constitution was inadequately phrased on the subject of right to life. This procedure that Justice Blackmun employed in Roe v. Wade, looking for a consensus in lower court decisions also contradicts the design of our legal system by having the Supreme Court look to the lower courts to determine how to read the law instead of the other way around.
But we, the citizens, have failed our nation on this question of right to life for the unborn child as well. In effect, in not accomplishing an amendment to remedy the Constitution’s silence on the question of legal personhood for the unborn child, we, the citizens and legislators, have been asking our courts to do our job, to make the laws, or to modify the laws in order to make them unambiguous. Within the separation of powers instituted by the structure of our United States government system, courts are not empowered to make or modify the laws, only to interpret them. Citizens, through their elected representatives, are the only ones empowered to make and modify the law.
The entire phenomenon of the convoluted social-political struggle to define abortion law in the United States is a travesty on the design structure of the U.S. legal system. Everything we have been doing on the issue of abortion, both the courts and the public, has been the reverse of what the U.S. legal process requires. The Supreme Court looked to the lower courts for guidance on a constitutional question instead of the other way around as it should be, and the public has been asking the courts to defer to public opinion expressed only in the media minus legislative action, instead of interpreting the law as presently written as our legal system obligates the courts to do.
Of course, if the Constitution had explicitly addressed the question of the unborn child’s right to life, none of this would have happened. In the Constitution’s silence on abortion we are facing a legal conundrum that, until resolved by an amendment, can produce no end of nightmares in bogus legal interpretations and inconsistent application of right to life law.
Of course, until we make the requisite amendment, the courts are stuck trying to do the impossible: interpret material that isn’t really there. No matter how emotionally and morally committed we are to either side of this issue, and even if every citizen were to come to agreement on what the Constitution should say on abortion, we, the public (although we can amend the Constitution), do not decide the question of how to interpret the present form of the Constitution. The courts must decide that question, and not upon the basis of how the public would seem to prefer the Constitution to have been written, but upon how it actually is written.
The courts must interpret the Constitution as written, yet it is clear that the Constitution has not expressly addressed the question of the unborn child’s right to life at all. The Constitution is silent on the issue of abortion. Thus, the Supreme Court has nothing to work with to directly form their interpretation.
In Roe v. Wade the Supreme Court did the only thing it could do short of declaring the Constitution void because it was too vague and incomplete to allow practical application of right to life law concerning unborn children. It used indirect indicators to guide an interpretation: historical documentation about the intentions of the framers of the Constitution and the history of subsequent state and federal abortion law. Abortion law was apparently presumed by the Blackmun Court to reflect an accurate understanding of the intentions of the framers of the relevant constitutional amendments containing the right to life clauses. However, the fact that state and federal abortion law up to that time had been clearly divided on the question of the unborn child’s right to life tells us that the indicators there in the U.S. legislative history were mixed. The courts had allowed abortion law to go both ways over the decades prior to Roe, declaring neither view unconstitutional until Roe v. Wade came along in 1973. The Court in Roe v. Wade, in forming an interpretation from fully mixed indicators, generated a decision having no real basis in legal principle or historical precedent.
There was no consensus derivable from the mixed history of abortion law. Justice Blackmun elected to give greater weight to the more recent formulations of abortion law, which were more permissive of abortion. This was an unnaturally labored, if not contrived, argument. The older laws might be presumed to more closely reflect the intent of the framers of the Constitution and its amendments, as they were closer in time and culture. The more recent laws might be presumed to be more representative of current popular opinion, but our legal system does not allow the courts to defer to popular opinion unless it has been codified into law via legislative action.
Also, in using lower courts to guide the Supreme Court, which itself then issues authoritative guidance to guide the lower courts, circularity is invoked. A contradiction also occurs in using the mixed history of abortion law to ground a Supreme Court decision that outlawing abortion is unconstitutional because neither view of abortion was considered unconstitutional in the history of U.S. abortion law prior to Roe. To use the fully divergent history of U.S. abortion law, none of which was ever declared unconstitutional, to ground a position that granting the unborn child the right to life is unconstitutional is therefore a contradiction. The only thing that the divergent history of U.S. abortion law demonstrates is that the courts viewed the Constitution as silent on the question of the unborn child’s right to life and left the question up to legislators, both state and federal, to variously answer at different times as they saw fit to do.
The interpretation of the Constitution on the question of the unborn child’s right to life rendered by the Supreme Court at Roe v. Wade is fully ungrounded, and therefore invalid. However, if we take the position that our legal system is incapable of dealing with constitutional silence at the Supreme Court level where guidance is unavoidably required for application of the laws to continue at all, we can’t just throw Roe out, we have to replace it with a more cogent interpretation.
In searching for that new more cogent interpretation we are, in the absence of clear language, left with the use of indirect interpretive methods. The fact that the Blackmun Court failed in attempting to form an interpretation from indirect indicators does not mean that all others must fail as well. The Supreme Court in Roe v. Wade did not use all the indirect indicators available to form its interpretation, and it seriously misread the indicators it did use.
My own exercise of such methods has led me to a belief that the authors of the Fifth and Fourteenth Amendments most probably held the unborn to be persons, or, if not “persons,” at least “human beings” who’s right to life was constitutionally protected. To begin an explanation of why this is true, here is a synopsis of the relevant elements of the history of abortion law in Western culture having a direct formative influence on the framers of the Fifth and Fourteenth Amendments to the U.S. Constitution:
• Prior to the 19th Century. Western law viewed abortion as either a felony or a “heinous” misdemeanor. The following is a quote from the Wikipedia article on quickening at http://en.wikipedia.org/wiki/Quickening (Note: “quickening” is felt movement of the fetus by the mother, which occurs at varying times from 14-20 weeks of pregnancy.):
“The word "quick" originally meant "alive". Historically, quickening has sometimes been considered to be the beginning of the possession of "individual life" by the fetus. British legal scholar William Blackstone explained the subject of quickening in the eighteenth century, relative to feticide and abortion:
Life… begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor.
Nevertheless, quickening was only one of several standards that were used historically to determine when the right to life attaches to a fetus. According to the "ancient law" mentioned by Blackstone, another standard was formation of the fetus, which occurs weeks before quickening. Henry de Bracton explained the ancient law, about five hundred years before Blackstone:
If one strikes a pregnant woman or gives her poison in order to procure an abortion, if the fetus is already formed or quickened, especially if it is quickened, he commits homicide.
The rule that a fetus was considered alive upon formation dates back at least another millennium [dubious – discuss] before Bracton. For example, in the Septuagint text of the Old Testament, killing the fetus was considered to be taking a life, "if it be perfectly formed".
(The following four facts are taken from Fox news article on history of U.S. abortion law at http://www.foxnews.com/story/2003/01/21/fast-facts-history-us-abortion-laws/.)
• The American colonies adopted English Common Law, which made abortion after quickening a felony.
• In the early 1800s science discovered that life begins at fertilization, not when the mother first feels the baby.
• In 1860 eighty-five percent of the then-present U.S. states had laws that made all abortions a felony.
• 1869 British Parliament passed the Offenses Against the Persons Act, making all abortions a felony.
• The Fifth Amendment was ratified with the rest of the first ten amendments comprising the Bill of Rights in 1791, and the Fourteenth Amendment was ratified in 1868. The beginning of the legalization of abortion trend did not begin until Colorado and California legalized abortion in 1967, followed by 14 other states by 1970, and, of course, the Roe v. Wade Supreme Court decision in 1973..
Justice Blackmun, who wrote the opinion in Roe, made the case that there was no express indication that the courts ever considered the unborn child a person with the right to life even when the prevailing laws made abortion illegal, a serious felony, and invoked severe penalties. But why must the indicators be explicit to be valid? And why must right to life of the unborn child be tied to Blackmun’s strained and ungrounded concept of personhood in the first place? As we will soon see, Blackmun’s tactic of importing the “adults only” concept of personhood from totally unrelated sections of the Constitution was invalid and fully irrelevant to how the authors of the Fifth and Fourteenth Amendments viewed the protected status of the unborn child. But for now let’s keep it simple.
In making abortion a serious felony, as United States and British law was doing at the time the Fifth and Fourteenth Amendments were ratified, legislators revealed the implicit assumption that the Constitution grants the unborn child the right to life as a “living human being” if not as a technical legal “person.” Else how could such a law contradict the mother’s right to control her own body—and in so strong a manner has to send her to prison and brand her a major felon the rest of her life? If there is no child there with a right to life to protect, what outweighs the mother’s liberty to control her own body?
To my thinking at least, the only legal precept that could outweigh the right to the liberty to control one’s own body regarding such a major impact as a pregnancy is the right to life of another human being. From reading the transcript of the decision in Roe, it would seem that Justice Blackmun’s response would likely be that our concern for implicit human life in the developing fetus, as opposed to the presence of an actual human being/person is what was felt to outweigh the mother’s right to control her own body in early abortion law where abortion was held to be a crime. I think this is a very weak argument on Blackmun’s part.
The concept of an implicit human person as opposed to an actual one is very tenuous in itself. But even if we grant that distinction to Justice Blackmun, I don’t think anything that is merely implicit is going to sufficient legal, moral, or personal weight to override a woman’s decision on something of such vital concern as a total physical system alteration so fundamental to her right to control her own body as a pregnancy. If we grant this last point, then the stronger argument is that the history of abortion law implies that the developing unborn child was considered a human being/person by the legislatures and courts close to the time of the enactment of the Fifth and Fourteenth Amendments to the Constitution because merely implicit human personhood would not have carried sufficient weight in the minds of the legislators of felony abortion law (and even for law classifying abortion as a heinous misdemeanor) to override the mother’s right to privacy and control of her own body. I think this argument provides the best insight available into the intentions of those who authored and enacted those amendments regarding the question of legal personhood for the unborn child.
For those reasons I maintain that Justice Blackmun’s opinion in Roe was wrong. Through valid logical inference the implicit indicators convincingly establish that courts and legislators prior to Roe did read the Constitution as granting right to life protection to the unborn child during those periods when abortion was viewed as a serious crime. These periods in aggregate constitute the majority of U.S. legal history prior to Roe.
Beginning circa 1969 the modern culture made a change in how it viewed the unborn child, thus influencing the courts of the time. However, viewed via the entire history of abortion law and lower court endorsement of that law (Blackmun’s own tactic) it seems that the authors of the Fifth and Fourteenth Amendments implicitly did not share that modern view.
All Blackmun has left in his arsenal of legal argument is the observation that there is no definite record in the history of abortion law that the courts and legislatures ever explicitly considered the unborn child a person within the meaning of the term ‘person’ as used across the many and varied contexts in the larger Constitution. With the exception of the very clauses in the Fifth and Fourteenth Amendments Blackmun is trying to interpret, none of these contexts have anything whatsoever to do with unborn children. Blackmun’s argument regarding use of the term ‘person’ is a strained and artificial maneuver that has no support either from the text of the Constitution or from legal logic and common sense. Roe therefore fails as a defensible legal interpretation.
Beyond trying to extract a dominant theme from the history of abortion law, the other primary sources that could offer input bearing upon the legal personhood of the unborn child are science and religion. Blackmun considered both in his argument in Roe. Some forty odd years later, significant updates are now available from both science and religion. Religion’s input is unequivocal: abortion is a heinous moral evil that must stop and there is a clear consensus across the different faiths that life should be protected either from conception or from the point the fetus is fully formed (roughly 8 weeks). Science, while not chartered to speak to religious, philosophical, or legal precepts as such, does support the view that the unborn child is a human being in revealing that human life begins at conception, that heartbeats occur as early as 3-4 weeks, and that fully formed fetuses exist at 8 weeks, with movement as early as 14 weeks.
Indicators from all of the three major authoritative sources relevant to the right to life of the unborn can be seen to agree at this point: science, religion, and the history of abortion law. While everyone agrees with the mother’s protected liberty to control her own body in privacy, doing our homework properly in law, science, and religion tells us that something further is involved: another human being with rights equivalent to the mother’s is present in pregnancy: the fetus is not just an organic subsystem of the mother’s body, it is another human being. At that point the resolution of the abortion controversy becomes simple: right to life trumps right to privacy.
Roe also fails on the grounds of an age-old universally acknowledged legal principle: it produces ludicrous results. In the Supreme Court’s opinion at Roe, this rule of excluding the unborn from the right to life applies regardless of whether the unborn child, who has no right to life, is older than a born child who has the right to life.
Biologically viable babies may be killed under Roe while still in the womb, and some babies born too soon with no ability to independently survive outside the womb have their right to life protected under the Constitution even while they have no physical opportunity to live without the use of extraordinary medical life support technology.
But this is a clearly ridiculous result. Older, more developed, more mature, and more independent babies are not persons protected under the law, but younger less independent babies who happen to be born early are protected under the law.
Doing it in this way makes no biological sense, and, as we shall see, very little sense otherwise. In fact, the Court’s position in Roe is so directly counter to science, logic, intuition, theology, legal precepts, common sense, morality and human compassion that, if it had been espoused by one layman to another on the street, it would have been called nonsense (and often has been).
While unborn children are obviously not as fully developed as adult conjoined twins, they are living humans distinct from the mother. One of the conjoined twins cannot legally kill the other under protection of the right to privacy or liberty to control one’s own body granted to pregnant mothers under Roe v. Wade. (Ignoring for the moment the unavoidable health complications to the first by the death of the second to make a theoretical point.) Thus if we grant the analogy we get another ludicrous result from Roe.
Regardless of how one personally feels concerning what abortion policy should be, one thing is clear: this horrid decision by the Supreme Court in Roe v. Wade is an embarrassment to the judiciary, and thus to our free democratic nation and its internationally touted rule of constitutional law.
Having established that much, let’s go back for a moment to the conceptual start of the debate over abortion. Why don’t we consider our unborn children persons whose right to life is protected under the Fifth and Fourteenth Amendments of the Constitution? The language of the Constitution does not explicitly rule them out. They have the human genetic code, a unique one different from their mother’s, and they exhibit signs of life. They are therefore living humans distinct from the mother. Why aren’t unborn children considered persons with the right to life in the interim pending their certain and extremely rapid development? Logically, as Pope Saint John Paul II said, “What else could they be, aardvarks?”
The Supreme Court decision at Roe contradicts the three most meaningful of the four standards nature herself proposes as relevant to evaluating the biological advancement of a human child or any other living creature: viability (the ability to live outside the mother), age, birth, and maturity. Of these four, birth is the only one that hinges fully upon accidental circumstances having nothing whatsoever to do with the capacities of the child/organism. Yet the birth of the child is the sole criteria Roe invokes to establish personhood and the right to life.
Some children are born early who cannot live independently from the mother’s biological support system, and tragically, they die. They are vested with the right to life under law (as they should be), but many older and completely viable children, not yet born, do not have the right to life. An unborn 9-month-old child is not a person and so has no right to life, but a born 6-month-old is a person with the right to life. It makes no sense. Merely outlawing late-term abortions doesn’t fix this problem. Change the numbers to 6 months for the unborn and 5 months for the born and the conceptual result is the same, a ludicrous contradiction.
Roe’s criteria functions almost at the level of primitive superstition, ignoring all we know about the child from medical science. In other words, in the world of Roe it is as if there is no child there until we can see it outside the mother. Using that standard, modern medicine would be impossible. We could only have heart surgery in cases where a gaping chest wound revealed the heart, otherwise we would be presumed not to have a heart at all!
So, what’s it going to be? Are our unborn children aardvarks or persons? The Supreme Court is not infallible. Our job as citizens and lawmakers is to decide if the Court has erred in Roe on this most crucial of all questions—for life itself is at stake. If we conclude as I argue here that it has erred we must pursue a Constitutional amendment to prevent future tragic errors of the same kind. That amendment must explicitly grant right to life protection to the unborn from conception or whatever stage of development that seems to most commend itself to the law all things considered.
The innate philosopher in all of us should be asking ourselves the following question: “What else could have (normally) 100% certain development into a person, and be an entity that is biologically continuous with that later person, except a young developing person?” Webster’s Dictionary defines ‘person’ as a “human, individual.” The developing baby, even at the first moment of conception, is human, and it is an individual human different from the mother by virtue of its different genetic code. Yes, it depends upon the mother to live, but that is a question of viability, not individuation. And children are fully dependent upon their parents for survival years after they are born.
The unborn child is an individual human, albeit a developing one—the same individual that will be unquestionably recognized as a person with legal standing within six to nine months at birth. It is the same individual who will have its own heartbeat as early as twenty-two days from the instant of conception.
Is it because the unborn child is still developing physically that we deny him or her right to life? Other physically developing humans have the right to life. Disabled adult persons temporarily lacking significant physical functions retain their legal status as persons under the Constitution pending therapeutic or natural reattainment of improved health and functionality over much longer periods of time than nine months. Some of them are fully dependent, fully immobile, or even unconscious. Why don’t young developing humans have the same constitutional protection as older humans who have no independent functionality whatsoever and no prognosis to reattain it?
The Court in Roe deemed there to be some additional quality other than the presence a living human organism necessary for personhood. While a formed and functioning physiology is obviously implied by the word “born,” and so an implicit criteria for personhood under Roe, no particular degree of development was specified by the Court.
It is also true that birth itself is not a physical quality or stage of development at all, but rather an event. It is an event not tied to any essential quality of the individual child whatsoever, and thus, in respect to the question of personhood, is completely incidental—and accidental. Time of birth is an accident having to do with circumstances surrounding the mother. Accidents can both literally induce birth and compel surgical delivery of the child. Is the child not a person one moment before the accidental event and a person in the next moment after the accident-triggered delivery? Obviously life doesn’t begin at birth, and legal personhood can’t depend upon something fully accidental. To represent such an idea is to revert to prehistoric pagan superstition!
Yet our Supreme Court has elected to establish an accidental criterion for the right to life. The Court apparently felt compelled to take this approach to avoid stepping out of bounds and making the law instead of merely interpreting it. However, in doing so they were merely refusing to face the fact that our Constitution is truly silent on the question of right to life for the unborn, and therefore that the earlier court decisions had also been forced to make the law. The Supreme Court’s referring to the history of law in Roe does not avoid the problem of having the courts step out of bounds beyond judicial interpretation; it only reveals that the violation first occurred in an earlier court.
Given a Constitution that is silent on the question of right to life for the unborn child, one is tempted to say that President George W. Bush was right: if the federal law is silent on an issue, legislative control reverts to the states. This is true as far as it goes for typical legal questions, but the problem here is that the right to life is an exclusively constitutional question because the Fifth and Fourteenth Amendments have stepped up to guarantee the right to life.
This makes right to life a Constitution-controlled issue and the variations among the states that would result from giving control to them would inevitably bring cases right back to the Supreme Court to resolve the disparities—by reference to the Constitution. In a nut shell the legal dilemma concerning the abortion issue is that it is a Constitution-controlled question and the Constitution is silent on the question. This deficiency must be resolved by an amendment to the Constitution; there is no other solution that works.
Since right to life law affects the integrity of many crucial aspects of the administration of justice and law, the nation cannot function without a clear statement on right to life in the Constitution. Consequently, to be strictly correct, the Supreme Court should have, as odd as it may seem, returned the Constitution to the Congress for Amendment, labeling it vague or incomplete and therefore not amenable to interpretation or application. This is what courts routinely do with legislation that is so deficient that it can’t be applied with consistency by administrators or through court interpretation.
But the Constitution is not just another federal law; it is a special case and there is no express provision for the Supreme Court to send the Constitution back to Congress to amend a deficiency. On the other hand, there doesn’t seem to be any express provision against the court doing this. At a minimum, there seems to be nothing preventing the Court from rejecting an abortion case and sending a memo to Congress saying all such cases will be rejected until the deficiency in the Constitution is remedied via an amendment—and that the administration of justice will be seriously impeded until Congress fixes the problem with an amendment that adds content and clarity. The Constitution is a law; it belongs to the Congress in the sense of authorial ownership. Congress should therefore have an interest in pursuing a clarifying amendment to enable its Constitution to be coherently and consistently applied in the legal cases that come before the courts.
In the meantime in the absence of such a clarifying amendment, we have no choice but to look for further interpretive support to argue against Roe until such time as an amendment to the Constitution can be enacted. We cannot, in any case, permit the right to life to remain dependent upon an accident.
But don’t hold your breath waiting for the amendment. Oddly, there seems to be no political will, even in the Republican Party for a constitutional amendment to give the right to life to unborn children. My senators and congresspersons very conscientiously respond with explanatory letters on every issue I have ever contacted them about over many years except one: a constitutional amendment on the right to life for the unborn child. When I inquire on that question if a response is given it ignores the question of the amendment and simply addresses a general pro-life stance of the official.
Perhaps strategic timing is what they are waiting for. In the absence of a clear majority that is pro-life, they may want to be sure they don’t get an amendment saying the wrong thing. Congress could get into a tug of war with an exchange of back-to-back constitutional amendment, one granting the right to life to the unborn and the next withdrawing it. The net effect would be a watering down of the legal force of the Constitution, which is supposed to reflect eternal moral and legal principles, not partisan politics. Perhaps legislators feel that a culture change should occur first so that an amendment can endure after it is enacted. There was an attempt to get a pro-life amendment in the 1980s. Surprisingly, one of those voting for it at the time was a Democrat, Senator Joseph Biden, now our Vice President.
Perhaps there are valid legislative strategy considerations that have delayed a pro-life amendment, but there are other more troubling possibilities to consider. The right to life for the unborn is a huge rallying flag that brings in substantial numbers of votes for republican candidates, and the enormous Catholic vote, specifically. If a constitutional amendment is enacted solving the right to life problem permanently, Republican candidates stand to lose the Catholic/right-to-life vote. This is because Catholics and other right-to-life voters are also concerned to help the poor, the minorities, the immigrants, and the environment. This is a job Democrats have traditionally done much better than Republicans. It doesn’t have to be that way, but so goes the historical record. Savvy Republican politicians, or their campaign managers, may be hesitant to solve the abortion problem permanently for fear of losing a huge pot of Catholic votes big enough to actually determine the outcome of the next election. So, while there can be good strategic reasons to delay pushing for a right to life amendment, there can also be bad, politically selfish, motivations for doing the same thing. Considering that millions of innocent children are being slaughtered in the meantime, any argument for delay would have to be based upon a clear and well-grounded determination that trying for the amendment too soon would do more harm than good. One thing to note on timing is that the recent Republican surge in the House and Senate (2014) combined with a liberal trend in the general population may mean that now may be the last opportunity for a long time. However, it also means that the growing liberal community may push to have such an amendment immediately thrown out and replaced with a pro-abortion amendment that throws out some of the progress already made, such as the prohibition on late term abortions partial birth.
In the meantime while urging an amendment and waiting for amendment politics to hash themselves out, we have to fight the battle for overturning Roe v Wade via arguing for a different interpretation of the present Constitution. To form such an argument, we may look to contextual clues in the Constitution, or turn to the historical evidence bearing upon the likely view of the authors of the amendments to the Constitution. We may examine the history of state and federal law, and attempt to extrapolate a reasonable interpretation of what definition of ‘person’ the states and federal government were at least implicitly using through the history of our nation (assuming the uses don’t vary so much as to be self-contradictory). We may even consider if perhaps the authors of the Constitution as amended had intended to leave the job of defining ‘person’ up to the states, thereby permitting variations among the states on the issue. Believing it wise to stay as close to the Constitution as possible, ranging further afield only when forced to do so, let’s look first at the pertinent statements in the Constitution and see if the discernable linguistic context can clarify the intended meaning and scope of extension of the term ‘person’ in order to determine if unborn children have been excluded from right to life protection.
As Justice Blackmun indicates in Roe the word ‘person’ in the Constitution as a whole, is used almost exclusively in a way that can have no application to prenatal (unborn) babies: “…in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.” This is so, but the fact that the term’s use in the Constitution has no prenatal application may simply mean that the question of right to life of the unborn child is not intended to be addressed in these other sections of the Constitution because they concern fully unrelated subjects. This is in fact precisely the case as we will see when we examine the contextual references in more detail. None of them provide a context that could possibly call for any involvement of unborn children, and so the absence of any statements using any terms whatsoever, including “person,” that seem to refer to unborn children is completely unsurprising, and completely irrelevant to the question of the unborn child’s right to life.
In saying “nearly all” Justice Blackmun reveals that there is variation in the use of the term ‘person’ throughout the Constitution, that its use is not 100% consistent. This implies that ‘person’ is used in a context specific way. It is therefore improper to plug the intended use of that term from one context into another simply because it happens to be in the same document. Let’s take a closer look.
In Inyo County v. Paiute-Shoshone Indians of the Bishop Community, 538 U.S. 701, the Supreme Court cited United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001):
Although we generally presume that identical words used in different parts of the same act are intended to have the same meaning, the presumption is not rigid, and the meaning of the same words well may vary to meet the purposes of the law.
(Ironically, the term under consideration was this very word that the entire abortion controversy pivots around, ‘person.’)
Thus, in Georgia, the Court held that a State, as purchaser of asphalt shipped in interstate commerce, qualified as a "person" entitled to seek redress under the Sherman Act for restraint of trade. Id., at 160- 163. Similarly, in Pfizer, the Court held that a foreign nation, as purchaser of antibiotics, ranked as a "person" qualified to sue pharmaceuticals manufacturers under our antitrust laws.
Consider also, the United States Department of Labor case, Mackey v. United States Marine Corp., 1999-WPC-6 (ALJ July 13, 1999).
1. Federal Water Pollution Control Act
Under the FWPCA's employee protection provision, "no person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee..." 33 U.S.C. § 1367(a) (emphasis added). Under the FWPCA, a "person" is expressly defined as "an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C. § 1362(5). It does not include "the United States Government."
In other words, as the poet Emily Dickinson might have said had she been a lawyer, for the purpose of law, a term is not a term is not a term. Meanings of the same term vary across different contexts. In the FWPCA the term ‘person’ can refer to a state, and in the False Claims Act (FCA), for another example, the term ‘person’ has likewise been extended to include municipalities. Obviously, neither the FCA nor the FWPCA were intending to deal with infants or the unborn as perpetrators of discrimination against employees or filers of false claims against the government.
It is clear enough, then, that when the legislative topic changes, the use of a term often changes as well. Consider next the range of topics covered by the base text of the original Constitution prior to amendment. Moving front to back we encounter the following topics:
Representatives & Taxes (“persons” used in this context)
Filling of vacancies (“persons” used in this context)
Power of impeachment
Composition of the Senate
Limits of impeachment (“person” used in this context)
Assembling of Congress
Proceedings of Congress
Compensation for Senators and Representatives (“person” used in this context)
Origination and approval of bills and resolutions (“persons” used in this context)
Migration & Importation of persons (“persons” used in this context)
Powers of Congress
Limits upon federal legislation and drawing of federal funds
Limits on titles and favors from foreign governments (“persons” used in this context)
Limitations upon states
President, Vice President and electoral college (“person” used in this context)
Duties of the President
Trial by Jury
Treason (“person” used in this context)
Mutual recognition by all states of individual state laws
Universality of privileges and immunities among all states
Extradition of criminals and indentured laborers (“person” occurs in this context)
Admitting of new states
Disposition of territory and property of the United States
Guarantee to the states of republican government and protection against invasion and domestic violence
Amendments to the Constitution
Supremacy of the Constitution and federal law and federal treaties
Oaths of office and lack of religious test for office
How many of these topics look like they were meant to deal with the circumstances of infants or unborn children? Well, none of them, obviously; they concern totally different issues, all of which reside exclusively within the domain of adult human activities. It is obvious on the face that none of these contexts can shed light on the question of the right to life for the unborn child; they are simply irrelevant. The amendments to the Constitution present precisely the same dearth of relevance. (Note: the first ten amendments are called the Bill of Rights.)
The 27 constitutional amendments:
I. Freedoms of speech, religion, the press, assembly and petition of Congress
II. The right of the people to keep and bear arms
III. Prohibition of quartering soldiers in private homes
IV. Protection against unreasonable search and seizure
V. Grand jury indictment; self-incrimination; double jeopardy; due process of law required prior to deprivation of life liberty or property (“person” occurs in this context); taking of private property for public use
VI. Right to speedy and public trial, right to be informed of accusation, right to counsel, right to confront witnesses
VII. Right to jury trial for civil suits and consistent application of rules of civil procedure
VIII. Protection against excessive bail and cruel and unusual punishment
VIIII. Enumerated rights do not deny or disparage other rights retained by the people
X. Powers not delegated to the federal government by the Constitution or prohibited to the states are retained by the states or by the people
XI. Limits on suits against states by citizens of other states or foreign powers
XII. Electoral College procedures for electing the President
XIII. Prohibition of slavery
XIV. Citizenship by birth; equal protection under the law; non-abridgement of immunities and privileges; due process protection restated from Fifth Amendment (“person” again occurs in same context as Fifth Amendment); apportionment of representatives; disqualifications for office (“person” occurs in this context); valid and invalid debts.
XV. The right to vote cannot be denied based upon race, color, or previous condition of servitude
XVI. Authority to levy taxes
XVII. Composition of the Senate
XVIII. Prohibition of alcoholic beverages, repealed by Amendment 21
XIX. The right to vote cannot be denied based upon sex
XX. Dates of terms of President & Vice President; date for assembly of Congress; provisions for replacing those in the chain of succession of the President & Vice President who have died in office (“persons” occurs here).
XXI. Prohibition of alcoholic beverages repealed
XXII. Terms limits for the President (“person” occurs here)
XXIII. Appointment of electors equating to a districts congressional representatives
XXIV. The right to vote may not be abridged due to failure to pay tax
XXV. Procedures when a vacancy or inability to perform duties occurs with President, or a vacancy of the Vice Presidency
XXVI. The right to vote of any citizen 18 years of age or older may not be denied by the United States or any state on account of age
XXVII. Delay in the implementation of new laws affecting the remuneration of elected representatives
There is no relevance to unborn children here either, with the exception of the Fifth and Fourteenth Amendments that Justice Blackmun was trying to interpret in Roe. Nowhere else in the Constitution but in the due process clauses of the Fifth and Fourteenth Amendments is the topic of personhood viz a viz the right to life addressed. Mr. Justice Blackmun’s tactic of looking across the range of broadly varying topics within the Constitution for help with the intended meaning of the word ‘person’ for the purposes of right to life is therefore demonstrably invalid.
To further underscore the impropriety of importing implied definitions of the term ‘person’ from the different contexts within the Constitution one need merely consider that there was no right to life until the Fifth Amendment, which is part of the Bill of Rights. Therefore it is known a priori that none of the contexts within the Constitution prior to the Fifth Amendment could have conceivably had application to the question of right to life. Nonetheless, Mr. Justice Blackmun based his logic in Roe upon those contexts and others that were clearly irrelevant. The bottom line is that, with the exception of the Fourteenth Amendment, which merely repeats the due process clause that establishes the right to life, liberty and property affirmed by the Fifth Amendment, there are no other contexts in the constitution that have bearing on the right to life or deal with activities that could conceivably relate to unborn children.
The simple fact of the matter is that meanings vary with context, legislational intent, different acts, different statutes, and different subtopics occurring within all the above. This is made clear in case after case. Importing the definitions of “person” used in other sections of the Constitution outside right to life is therefore transparently improper.
The implicit definitions of ‘person’ (for none are stated) used in various contexts within the Constitution itself are clearly varied in ways related to those contexts, varied because of the different legislative purposes involved. Therefore, they are, on the surface, a perfectly suitable instance of application of the rule forbidding importation of the meaning of terms between overtly different contexts. Furthermore, the lack of a true and explicit definition of ‘person’ anywhere in these other contexts essentially means that there is none. There is literally no genuine definition to import. By referring to implied and unstated definitions in wholly different contexts having different legal applications, Justice Blackmun has stretched the linguistic argument beyond credulity. His argument fails, and the decision of Roe that depends upon that argument fails with it.
Article IV of the Constitution contains the following two passages:
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law of regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
The legislative intent of these passages is to deal with situations of adult crime and servitude of labor, which have nothing at all to do with, or to say about, the unborn child. They imply the ability to flee, clearly ruling out any applicability to unborn babies. Such a passage cannot reasonably be presumed to imply nonpersonhood for the unborn child. Every other occurrence of the term ‘person’ in the Constitution outside the due process clauses of the Fifth and Fourteenth Amendments is on a topic similarly unrelated to unborn children.
Consider another case, Armbruster v. Quinn, 711 F.2d 1332 (6th Cir. 07/07/1983), where the 6th Circuit Federal Court of Appeals stated the following concerning another term, “employee.”
First, the term employee is clearly to be given a broad construction under all provisions of the Act. In Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977), this Court analyzed whether a former employee should be deemed an employee for purposes of the anti-discrimination provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3). The court noted that the term "employee," under the FLSA, had been given the broadest definition ever included in any one act. Id. at 143. Using the guidance of Social Security Act, National Labor Relations Act and Title VII decisions and their interpretations of employee thereunder, the court broadly construed the term "employee" under the FLSA to extend to former employees.
The Supreme Court has explained the broad interpretation the term employee should have in NLRB v. Hearst Publications, 322 U.S. 111, 88 L. Ed. 1170, 64 S. Ct. 851 (1944). In that context, the court determined that the construction of the term employee should encompass the history and purpose of the statute. The court further stated that the term employee: is not treated by Congress as a word of art having a definite meaning . . . . Rather it takes color from its surroundings . . . [in] the statute where it appears, and derives meaning from the context of that statute, which must be read in the light of the mischief to be corrected and the end to be attained.
Accordingly, we hold that the term employee in Title VII "must be read in light of the mischief to be corrected and the end to be attained."
We can apply this same reasoning to the right to life issue. The due process clause of the 14th Amendment that protects the right to life should view ‘person’ the same way, first as not being a term of art having a set meaning, a pre-established technical definition established by fully irrelevant sections elsewhere, but rather a general common language word that takes “color from its surroundings.” Its application in right to life law is to be determined by the “end to be attained.” In this case, the end to be attained is the protection of “life,” another undefined non-technical term. The common language use of the term “life” then must inform the application of right to life law.
The common language use of the term “life” itself depends upon the science of life. Science now unanimously affirms that there is life as evidenced by cell function, cell division, differentiation and development from the moment of conception. Religion’s input becomes relevant here as well in that what would otherwise be a non-intuitive application of the term person to a cluster of living cells (the zygote) or to a yet to be fully developed fetus, makes much more sense if the soul is considered, not just the developing body. Certainly a clear majority of the founding fathers of this country believed in the human soul even if many present day citizens don’t. As God says in the first chapter of Jeremiah in the Holy Bible, “Before I formed you in the womb I knew you, and before you were born I consecrated you.” This implies personhood for the soul and for the developing body at the point the soul is infused to it. Although this point of infusion of the soul to the body is unknown, the Church leaves open the possibility that it occurs as early as the first moment of conception.
Therefore, since neither of the terms ‘person’ or ‘life’ are predefined terms of art, the common language, that is, plain sense, reading of the 14th Amendment as informed by relevant cultural context usage must apply. In such a reading all human beings, that is, any and all organisms having a unique human genetic code (also present at conception) that show signs of life to the satisfaction of science are to be protected under the due process clause as persons because they constitute human life and the soul is potentially infused to the developing human at all points from conception forward.
One might want to argue that Justice Blackmun’s decision in Roe itself made the term ‘person’ a legal term of art, defining it based upon Blackmun’s perception of the predominant themes running through a wildly varied roughly 200 year history of abortion law in the United States (and common law before that). However, terms of art do not vary in their meaning, nor does it take 200 years to define them, nor does any controversy remain once a term of art has been defined, for terms of art are simply standardized technical linguistic tools, and all who practice the law acknowledge them as such. The fact that Justice Blackmun had to go looking for a definition of ‘person’ merely implicit in 200 years of variable state and federal law clearly shows that the term ‘person’ was not established as a term of art by the framers of the constitution and the authors of the 5th and 14th Amendments, otherwise the meaning would have been clear and the abortion debate would not have centered upon the meaning of the term.
Yes, in theory the Supreme Court has the authority to define the term “person” as used in the Fifth and Fourteenth Amendments via a Court decision, and in fact they did this, but the definition is invalid based upon the absence of a supporting theme in the history of abortion law and the fact that the definition clearly contradicts both the concept of ‘person’ the founding fathers would have held in their own historical/cultural context and the fact that they refrained from explicitly making ‘person’ a legal term of art themselves by not overtly defining it in the text of the constitutional amendments, thus leaving it to be defined in natural language and cultural usage contexts as we have just discussed.
Lacking both an explicit definition and a properly imported one, we are left with no choice but to look for an implicit one, based on contextual clues in the surrounding language of the Fifth and Fourteenth amendments and in natural language and cultural contexts where the term ‘person’ is used in way potentially relevant to unborn children.
The available clues within the Constitution and its amendments are few and subtle, but, out of necessity, let’s consider a short defense of using them.
Authors and everyday users of language are generally obligated (if only subconsciously) to be sensitive to the overall meaning of what they are saying as defined by the interrelationships of the components of their sentences, the syntax (structure of the phrases) and semantics (meaning of the words). That is essentially what it means to learn a language, though most of that learning is subconscious outside of college linguistics courses. Because we understand how our language works it is reasonable to assume, short of lying, that people say what they mean and mean what they say—especially professionals whose art and craft demand precision because of the risk of adverse accountability for mistakes.
The point is that, because speakers and writers are assumed to have an intuitive grasp of how the overall structure of their language is used to convey meaning, looking at contextual clues in order to clarify the meaning of a sentence, especially where professional work such as law and government policy is involved, is a valid enterprise. In the everyday practice of legal case law courts of law do this kind of thing in the most meticulous manner every day. One would expect then that our consummate legal document, the Constitution, would reflect that legal care and precision with language, that it would give some indication of whether or not the term “person” applies to the unborn.
Looking at the Fifth and Fourteenth Amendments we see that the authors have given us little help by way of linguistic context. There are, however, four small contextual clues present. All four tend to suggest that the unborn child was considered a person by the authors of these two controlling amendments.
The paragraphs that contain the right to life/due process clause yield no clues about who qualify as persons for the purpose of due process protection because each sentence addresses a different topic. The remaining paragraphs in these two amendments are similarly concerned with different subjects, and the same is true of the entirety of the rest of the Constitution. Therefore, the only context that can be established to apply to the right to life question is in the one sentence containing the due process clause that prescribes the right to life.
So, what clues are present there? Let’s look again at the Constitution and see.
No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
What properties and what class of referents does the internal context logically ascribe to the word ‘person’ here? It ascribes (1) the natural capability to possess life, liberty, and property—those things the deprivation of which is forbidden by the amendment prior to due process of law; (2) that persons can be the recipient of due process of law; and (3) that they can be within the jurisdiction of a state. These three assignments of meaning are both obvious to the general reader and also what a strict diagram of the syntax and elementary propositional meaning of the sentence would reveal. What do these clues tell us about whether or not an unborn child qualifies under the Constitution’s now partially revealed definition of person (assuming the authors chose to have a definition at all)?
On the surface it is clear that adults and even born children have a much greater capacity to qualify under these implied capacities than unborn children. But, let’s be thorough and look closer to see if the unborn can qualify at all.
Let’s begin by looking at (1) the natural capability to possess life, liberty, and property. Science has now definitively established the unborn child as living from the moment of conception. The unborn child is therefore capable of possessing, and actually in possession of life. The fact that the unborn child’s genetic code is different from the mother’s makes the unborn child a distinct human individual, so the life that science says is present in the zygote, embryo, fetus, and unborn baby cannot be dismissed as merely a byproduct of a subsystem of the mother’s body. The unborn then qualify under this first contextually implied necessary condition for personhood. They are within the class of those humans who are capable of possessing one of the enumerated things being protected—life. This clue, then, turns out to be a positive indicator on the question of legal personhood for the unborn.
The second contextual clue says that ‘persons’ can be the recipients of due process, which is closely related to the question we are trying to decide for the unborn child: should they be the recipient of due process? The sentence under study does not give any indication as to whether unborn children can or cannot be the recipient of due process protection of the right to life in the view of the authors—only that persons are recipients of it. We should note however, that the extensive discussion in the Court’s opinion in Roe v. Wade implies, by considering the question of personhood for the unborn so carefully, that, in theory, the unborn can be the recipient of due process protection in the event that the Constitution is found to have otherwise granted it to them—otherwise the extended discussion of personhood in Roe v. Wade, so pivotal to the logic of the decision, becomes superfluous. If there is no theoretical possibility of the unborn child being the recipient of due process protection in general, there is no point in performing an intricate legal analysis to determine if they qualify for the specific due process protection of their right to life. Therefore, Justice Blackmun, himself, appears to have read this particular aspect of the linguistic context as positive toward the unborn child being a potential recipient of due process protection.
The third contextual clue merely says that a person can be included within the jurisdiction of a state. The unborn can be seen to qualify here by virtue of the state’s interest to protect unborn life as asserted in Roe v. Wade itself. This phraseology, “protect unborn life,” also corroborates our earlier read of the first clue, implying the presence of a life distinct from the mother’s own, so that the presence of life in the human zygote, embryo, and fetus is clearly not being dismissed under law as being merely a subsystem of the mother’s body. Biology tells us the same thing in the tripartite terminology used to describe the developing child: zygote, embryo, and fetus. The term “fetus” begins to apply at 8 weeks, which is when the structure of the developing embryo resembles the adult human physiology. Obviously, there is no subsystem in the mother’s body that duplicates overall human body structure in this way and which has its own separate heartbeat.
Certainly the unborn have at times been protected under state law, whether they were viewed as persons in the process or not. That is evidenced by the anti-abortion statutes present through most our legal history since the nation’s founding. Therefore, the unborn child clearly can fall under a state’s jurisdiction. The unborn child therefore qualifies under this implied precondition as well.
What is the fourth and last contextual clue? This clue is external to the independent clause containing due process protection, but still internal to the compound sentence. It is the fact that persons and citizens are here distinguished as two different groups. This is done, presumably, because non-naturalized aliens are persons whose right to life is protected under the Fifth and Fourteenth Amendments even though they are not citizens. Persons are here shown to be a larger group than citizens, including citizens, but also including aliens.
We all know that babies born in the
Ironically, it is the Constitutional silence itself that comprises the clue here. The authors of the constitutional amendments had the option to quickly and simply rule out the unborn by the addition of a few words, “except the unborn,” or include them the same way, but they did not take either option. Why? They were very thoughtful and literate men, holding high positions, having published writing—certainly they cannot be charged with intellectual carelessness. They were in fact recognized geniuses at their work and their work was typically thoughtful and closely considered. Why wouldn’t these experts at legislation take the option to clarify such a glaring ambiguity in a critical context on the most important of all issues, the protection of life itself?
It is this apparently conscious and intended refusal to rule out the unborn child explicitly (or to rule them in) and thereby avoid the resultant and otherwise unnecessary confusion concerning right to life with merely a few strokes of the pen that constitutes my argument that this clue is more positive than neutral. Why didn’t they clarify the issue if there was any question at all?
Perhaps the answer to the question about why the Constitution is silent on the question of the unborn child’s right to life is a simple practical one of common sense: if you protect the mother you protect the child also. So for the purpose of protecting the unborn child’s right to life, protecting the mother’s right to life is sufficient. Perhaps, much like modern courts frequently do, the authors of the Fifth and Fourteenth Amendments elected not to attempt to reach to the obtuse, difficult, and controversial question of whether the unborn child was a person under the law because they didn’t have to answer that question to accomplish the immediate purpose of the laws they were creating, which was to protect both the mother and the child from abuse by other adults, especially abusive forms of future governments. They were not, perhaps, in the creation of these two amendments concerned with protecting the child from the mother, but only adults from adults.
In this reading of the right to life clauses, which makes perfect sense when one stops to think about it, the authors of the Fifth and Fourteenth Amendments simply left the task of legislating the protection of the unborn child from the mother’s abortive attempts to others or to other legislative products of their own at another time. If this is true, and it is probably the most likely hypothesis we have of the authors’ intent, President Bush was largely correct that authority to make abortion law was left to the states. However, it would seem that it was also left to federal legislators as well. This is not the comedy of errors situation that it might seem where whoever gets there first wins, or contradictions are allowed between state and federal law. It wouldn’t mean that contradictions are allowed because our legal system is set up with a means to resolve contradictions in law. This function is regularly performed by the Supreme Court, and there was no reason to assume there would be a serious conflict until one actually arose.
A strong argument for President Bush’s view that the Constitution left it up to the states to make their separate abortion laws and that it would not be a contradiction at all if the laws among the states were significantly different is the current situation where some states have the death penalty for heinous crimes and other states do not have the death penalty. The Supreme Court has not stepped in to force conformity among the states on the criminal death penalty so it might be similarly allowed for the states to vary significantly in their treatment of abortion law. There is a difference in the two situations of course: in abortion law the concern is to protect innocent life where in capital punishment the question is how far to go to punish the guilty. In the latter case the criminal has the benefit of due process of law before their life is taken; in the former the unborn child does not. Here we have yet another ludicrous result from Roe v. Wade: the guilty have more due process protection than the innocent.
One other contextual clue in the Constitution is the silence on the question of the unborn child’s right to life itself. Unfortunately, it is a clue that could mean several quite different things depending upon a variety of circumstances. If legal personhood for the unborn child was a legally contentious issue at the time, why not resolve such a major concern by adding four little words: “except the unborn child” or “including the unborn child?” Assuming there were major disagreements on the issue at the time, what would these brilliant and literate men stand to gain by avoiding explicitly clarifying their intentions? Nothing, except mass confusion in the courts and state legislatures about what the Constitution actually says—unless….
Unless they chose to leave it undefined because they preferred to leave it up to each state to individually decide the issue as is the case in capital criminal law; unless they were simply and forcefully forbidden by social taboo from discussing the issue of abortion in a public venue at all; or because, due to different religious, philosophical, or scientific views, opinion amongst the public and the legislators was so widely varied that there was no hope of reaching a consensus in the time available for legislative action. In the latter two cases, the question of how to view the unborn child’s rights under the law was left up to the states not so much by intention as by default. The federal legislators simply failed to complete that legal task and so it fell to others to do it.
Inquiry into the historical background of this issue reveals that during the nineteenth century the subject of abortion was a prohibitively strong social taboo. The subject wasn’t broached in public for fear of insulting the dignity of the mother. In the final analysis, this may turn out to be one of the only two reasons we have no full definition of ‘person’ in the Constitution with which we can properly adjudicate critical right to life issues: the subject of abortion was considered too repugnant to address in public. It is also likely that legislators in the 19th century assumed a position of simple humility on the issue of when life begins, reflecting the predominant view of humanity at the time: they just didn’t know the answer to that profound question and so they left the Constitution genuinely silent on the question of right to life for the unborn child.
The authors of the Fifth and Fourteenth constitutional amendments were brilliant men, and so perhaps they were not oblivious to the legal conundrum posed by constitutional silence on the unborn at all. Rather, they may have felt it was a problem naturally unreachable due to man’s lack of philosophical, religious, or scientific knowledge at the time. Justice Blackmun hinted as much in his prefatory comments to the Courts decision in Roe. Abortion, therefore, was a social problem that had to be creatively managed rather than a standard legal, scientific, philosophical, or religious problem that could be directly solved.
My position on the last, creative management, approach is that sometimes it is the best we can do, yes, but at other times, it is not good enough. Our Constitution must functionally serve to answer the question its authors have not answered because of the Constitution’s intended and historically confirmed central place as adjudicator of disputes between the states on matters of right to life law. The Constitution is the primary guarantor of the right to life. Therefore if the courts are to be able to apply the law, the Constitution must serve to answer the question of personhood whether it was politically expedient or epistemologically unavoidable to leave it minus the critical definition of ‘person’ at the time of enacting the amendments or not. It has fallen to us to complete the difficult task the legislators could not finish in the 1860s and we should diligently pursue it until it has been done. There have been 55 million innocent children killed by abortion since 1973! This is not just an academic question for erudite legal scholars; it is a pressing task for all of us as citizens who make the law (through our elected representatives) in a democratic nation.
The Constitution must be interpretable as speaking one way or the other on the issue of personhood for unborn children; otherwise it is rendered nonfunctional as the guarantor of the right to life. Therefore, in the absence of a corrective amendment, we must continue to search for some justifiable basis to ground an interpretative opinion, even while being forced to admit that there may be no grounds available because the authors simply didn’t know when life began. Sometimes legal tasks don’t get finished in all important respects; sometimes documents are incomplete; sometimes they are vague. Interpretation may, therefore, be inadequate for this task, but pending clarifying amendments, we are forced to work the interpretive question exhaustively to see what insights it might yield.
An authority or right that is not explicitly or implicitly reserved to the Federal government via the Constitution is, by the Constitution’s own authority, retained by the individual states and/or citizens. Therefore, one might argue that, if we can’t say where and how the language of the Constitution can be shown to have reserved the question of the definition of personhood to itself, then it hasn’t reserved it, and the authority to define legal personhood reverts to the states by the Constitution’s own logic. Again, if memory serves, this was President George W. Bush’s reading of the matter.
My view, however, is that common sense dictates that, although that argument is actually correct as a general rule, the question of the right to life of the unborn is an exception to that rule. The Constitution’s prescripts for reservation of non-enumerated rights and authorities to the people or the states are meant to do just that, reserve rights and authorities, not reserve administrative tasks such as definition of terms, which more properly fall under the heading of an historical-, legal-, and linguistics-based interpretive task for the Court. Vague or incomplete federal legislation is not viewed by the courts as presenting topics reserved to the states; those topics were already reserved to the states authority minus existing federal law. The act of producing legislation on a topic at the federal level implies a federal intent to reserve some authority on those topics for the federal government. Therefore the courts do not overlook vague or incomplete federal legislation where such an intent is implicit; they return the problematic legislation to the Congress for correction to fix the incomplete areas and clarify the vague areas sufficient to permit a coherent application of the law.
If a legislator employs a term in legislation, or a private author in written form on an important topic he or she is obligated by common sense, academic and legislative protocols to render either an implicit or explicit definition of her terms simply because no one else will know what she is intending to say if she doesn’t. By this logic, if the authors of the Constitution as amended have employed the term ‘person’ in such a significant way, they have implied their intent to reserve its definition to themselves. Therefore, we argue, they have in fact not left the issue of personhood and the right to life to the states for determination; they have simply failed to meet their obligation under legislative and linguistic protocol to clearly define their terms. This may have been an unavoidable consequence of social dynamics of the time—not their fault—but it is nonetheless true.
President Bush, of course, would probably argue that although the authority to define the term “person” in the Constitution resides with the Congress via constitutional amendment, until the term “person” is more clearly defined the Constitution remains silent on the right to life for the unborn and the question still reverts back to the individual states to make their own laws governing the question. He has a very strong argument there: the Constitution may be amended to define the term “person” and when that occurs the Constitution will control abortion law, but until that amendment is enacted the ball remains in the state’s court.
The Constitution’s silence on the question of the unborn in the right to life clauses in and of itself is essentially neutral in terms of indicating whether or not the unborn child was intended by the authors to have the right to live. However, combined with historical cultural factors it would seem to argue more for the unborn having the right to life.
Personally I favor the view that the authors of the Constitution and the Fifth and Fourteenth Amendments were working on the basis of the unborn child having a right to life, but a right that for all practical purposes was legislatively managed indirectly by protecting the mother. As a parent the mother was the child’s legal advocate, but she also provided a physical enclosure for the child that had the effect of making protective provisions for one the equivalent of protective provisions for the other. The constitutional authors were concerned with external threats to the right to life and since the child could not act independently in the external environment there was no call to treat the unborn child separately from the mother under right to life law.
The culture of the time would have been largely Christian family-oriented, within which culture the mother was viewed as the preeminent advocate and protector of the child, not a threat to it. In the late 1700s and mid 1800s abortion was probably considered (correctly or not) a statistically rare tragedy caused by psychological aberrations, and viewed as a very uncomfortable embarrassment to proper Christian society. The U.S. founding fathers therefore probably felt there was no need to break out the unborn child for separate treatment in right to life law, notwithstanding the fact that in their working assumptions they had granted that right to the unborn child. Within the Christian society of the time it was the mother’s job to protect the child and the law’s task to protect the mother.
Let’s move on and look at some further considerations concerning historical, legal, and linguistic contexts applicable to the Fifth and Fourteenth Amendments.
Was the Term “Person” Well-Understood Requiring No Definition?
The document in question, the Constitution, is supremely authoritative in this country, and the due process clauses of the Fifth and Fourteenth Amendments are arguably the most important pieces of legislation we have. The authors of the Fifth and Fourteenth Amendments were bound by both linguistic and legal logic as well as the gravity of the subject to either define the term ‘person’ explicitly or implicitly—but, from all appearances, they did neither. Their being so staunchly obligated to clarify the meaning of the term “person” in the right to life clause but failing to do it suggests one of three things was going on: either the meaning of the term “person” was already clearly understood across legal and/or social venues such that no definition was required; or the authors were using the mother as a proxy for the unborn child, which obviated the necessity of reaching the legal question of whether the unborn child was a legal person or not; or they were simply unable to do it for some reason. We have already discussed the mother as proxy and the varying religious and scientific concepts in society precluding consensus (and the taboo of discussing abortion at all), so let’s look at the first alternative: that the legal applications of the term “person” may have been felt to be already clearly understood.
Considering that the topic of abortion was a social taboo it is possible that the term “person” was well understood in law and society even minus a lot of related banter in publications documenting the presence of a consensus on the issue. But which way was it understood? If the public and legislators were all decided against the unborn child’s being a person, why the stiff criminal penalties for abortion both before and after the amendments were written? This suggests that the prevailing view must have been that the unborn child was a legally cognizable person but that it’s rights were being managed indirectly via proxy status of the mother and that penalties for violation of an unborn child’s right to life were somewhat mitigated in view of it being less than fully developed, not independent, not fully consciously aware, etc.
Rights of the Unborn Intentionally Left to the States to Govern?
The value of our constitutional form of government is that the Constitution as our supreme document is a guarantor of our most basic rights: life, liberty, and property. But here in this view of the Constitution we find ourselves saying that the authors of this great document, universally understood as having been intended to be the guarantor of the right to life above all else, have consciously elected to turn the whole issue back over to the states, permitting disagreement among the states, and simultaneously removing all legitimate grounds for the federal government via the Supreme Court to resolve differences among the state laws regarding when and where to protect life. But this is precisely what the Supreme Court in our system of government is tasked to do, among other things: resolve inconsistent applications of the law. Forbidding the Court’s ability to resolve differences in the application of right to life law would seem to me to invoke a contradiction in our legal structure and dynamics.
This view is indefensible for another reason, and a rather glaring one. Consider the relevant passage again: “…nor shall any state deprive any person of life, liberty, or property, without due process of law…” [My emphasis] Clearly the intent is to regulate the states so as to protect the citizen against the states’ potential abuses or errors concerning the right to life. If your intent is to regulate potential offenders, you cannot reasonably think to accomplish that by placing the matter back into the hands of those very same potential offenders. Having done so, nothing would remain to preclude the states from, for example, establishing a minimum age for personhood or from using some other criteria: seven years the “age of reason”, thirteen years “the age of reproductive maturity,” eighteen years “the voting age,” financial solvency, property ownership, race or ethnic group, sexual preference or life style, felony convictions, etc. Obviously, no effectual protection of the right to life against abuses by the states would be imparted by the Constitution at all under this view. I conclude, therefore, that this last option, leaving the states to define personhood, is an indefensible interpretive position.
Personhood Implicit in the History of State Abortion Law
Given that Justice Blackmun’s specious linguistic argument from uses of the term “person” in other sections of the Constitution has failed, on what basis might the Court otherwise proceed to render a decision regarding the right to life of the unborn child? Justice Blackmun argues that the history of state abortion law implies that the unborn have not been considered persons? I agree with Justice Blackmun’s procedure of looking to the history of state law for useful indications in the absence of direct constitutional guidance, while wholly disagreeing with his conclusion as to what those indications are.
I feel the Court should first have acknowledged that the mixed history of abortion law and its reflection of varying cultural norms invalidate that history as a sure guide to constitutional interpretation either way. The one solid indicator, because it reflects legal logic and not cultural trends, is the history of law regarding late-term abortion. The fact that late term abortions were punished as a serious crime when placed within the light of the constitutional logic of our primacy of rights argument (see the following section) suggests that only the unborn child’s right to life could outweigh the mother’s right to the liberty/privacy of electing an abortion.
Justice Blackmun points out that, if unborn children were viewed as persons, we historically could not have decided against them and authorized the taking of their lives for the purpose of saving the mother’s life, as we have historically done under state law, without first giving the unborn child the benefit of due process of law. This argument fails on the grounds that permitting abortion to save the mother need not commit the state to the position that the baby is a non-person. Situational crises can arise where it is possible to save only one of two or more persons, and the time for due process may simply not be medically available. Making an unavoidable decision about who to save does not mean that those left behind were legally considered nonpersons.
How many people will fit in a lifeboat or rescue helicopter has nothing to do with personhood, it is simply a practical exigency. Medical conflicts between the life of the mother and the child, as in the case of conflicts with Siamese twins, say nothing about the constitutional rights of either the mother or child, but only that there is a problem with the health of their bodies, that they are physically connected to each other, that the problem is time sensitive, and that insisting on due process of law is simply impractical and likely to aggravate the situation by getting in the way of daily medical care and rest. The mother is a known viable living human being who can survive without the child, but the child’s viability without the mother is often in question. So the triage question of which person survives can be a practical one that does not have to imply lack of personhood for the unborn child.
If those triage choices become institutionalized even nationwide to consistently save the mother over the child or vice versa on a standing basis it needn’t have constitutional implications; it’s still a medical procedure, not a legal one. It simply means that the same choice has been made, right or wrong, in a categorical way—and, in addition to the logic just discussed, probably for other blatantly common sense reasons. The unborn child cannot prosecute its own case, has no money to hire an attorney, and its defense would have to be managed by its parents/legal guardians—the very people who have already decided to kill it.
Attempting to afford the unborn child a literal course of due legal process would create unwieldy process dynamic even before we consider that there is no consistent legal precedent or history to guide the process and ground resolution. A more blatant invitation to conflict of interest could not be imagined. The court would be obligated to fire the child’s unqualified and interest-conflicted advocates (its parents), and appoint guardians for an unborn child presuming the parents unfit because they wish to kill the child. The resolution of many cases would frequently require more than nine months for purely administrative reasons and the child would be born during the process, obviating the whole proceeding! It is far from reasonable to assume state law should embody such impractical concepts. Therefore, requiring the state to implement such an untenable process as a necessary condition of their allowing for the personhood of the unborn child is not reasonable and Justice Blackmun’s argument fails.
Granted, prior to Roe a few states may have explicitly grounded their policy universally favoring the life of the mother over the child where they are in conflict in the belief that the child was not a person, and so stated that belief in state law. But where this was not made explicit, there is no reason to accept Blackmun’s argument that the states implicitly held the unborn child to be a nonperson under the Constitution because we they have never extended due process to unborn children. Given that extending due process to an unborn child is practically impossible before it is born, and that decisions for preserving the life of the mother over the child made in hospital are not representative of state legal philosophy but rather medical triage decisions, the state’s history of allowing the unborn to be killed minus due process implies very little about how they view the question of legal personhood for the unborn.
The Primacy of Rights Argument
The following six numbered paragraphs set out a key component of our logic against Roe, what I have been calling the Primacy of Rights Argument—or if you prefer, Hierarchy of Rights:
1. The right to life, liberty and property are the highest values embodied in our Constitution, usually and intuitively prioritized in the order listed. For the purposes of adjudicating or legislating any issue of law, only another person’s constitutional right of equal or higher primacy can outweigh a person’s basic constitutional right to life, liberty, property guaranteed under the Fifth and Fourteenth Amendments. Generally, one assumes that one person’s right to life clearly outweighs another’s right to property, and that life is nearly always viewed as more important than liberty, with rare exceptions such as military service where the nation asks its soldiers to risk death to preserve the liberty of themselves and their fellow citizens against tyrannical threats from abroad.
2. Only persons have such rights.
3. (Therefore) If one of a person’s basic constitutional rights is properly outweighed as a matter of law, then another person must have been present in the situation, or indirectly considered, whose equal or higher constitutional rights were in conflict with those of that person whose right was outweighed.
4. American abortion law has, from the time of the enactment of the Bill of Rights and Fourteenth Amendment to the Constitution, until Roe v. Wade in 1973, overwhelmingly, if not without exception, forbid and placed severe punishment upon abortion of late term babies, thus implying that the mother’s right to liberty to have the abortion (sometimes called “privacy” in the abortion context and sometimes called “liberty”) has been somehow properly outweighed. [By and large British common law applicable in this country prior to the Constitution, and our own statutory law prior to the Bill of Rights has done the same thing].
5. (Therefore) With the exception of a few states moving to more liberal views from 1969 to the Roe decision in 1973, the entire history of American abortion law prior to Roe v. Wade indicates that a person with constitutional rights equal to or higher than the mother’s right to liberty was present or otherwise being considered in late term abortion situations, that their rights were in direct conflict with the mother’s liberty to have the abortion, and took precedence.
6. (Therefore) Since no one else’s rights have been shown to be sufficiently involved to outweigh the mother’s right to liberty to have the abortion in these situations, except the baby’s right to life, it indicates that historically abortion law has viewed the unborn child in late term as a person with rights under the Constitution.
Astute readers are probably saying at this point, “Hold on, you referred to the primacy of rights argument above as a defense of all unborn children’s right to life, not just the late term babies.” That is true, but I wanted to present the argument first in its strongest form. The history of legal treatment of late term babies is more consistent and the punishment for late term abortions more severe, so it is more easily recognized as a good argument. I wanted to get the reader to first recognize the argument form as valid so that presenting a weaker version will not be rejected unless specific flaws can be enumerated that defeat it.
So, here is the weaker form. Why punish the mother at all, even at the misdemeanor level, for merely exercising a constitutionally protected right to liberty/privacy to control her own body? To me only the existence of another person with constitutional rights could compete with that right seriously enough to cause the mother to be punished for exercising it. Judge Blackmun would likely counter that the state’s interest in protecting latent life is sufficient to ground some punishment of the mother, but I would say the state would rather take a non-punitive tact in such cases, giving incentives to the mother to keep the child rather than making the mother a criminal for merely exercising a constitutional right. The state’s having an interest in protecting latent life for its own sake is a less than well-established principle in any case, with China limiting the number of children in a family to one or two and the public concerns about pollution and over-population having long been a matter of record.
The primacy of rights argument here assumes both a natural and logical primacy, i.e., order of priority, of certain constitutional rights in relation to the others as the only rational way to interpret the Constitution. Life has primacy over liberty (exclusive of matters involving military service in defense of freedom for the nation), liberty has primacy over property, and these three have primacy over other non-enumerated rights in general (except where the non-enumerated right may derive from one of higher primacy, being then, essentially the same right). We consider this common sense, at least as regarding life outweighing all else, since when your life is taken so are all your other rights combined. The cumulative weight of the loss of all rights must exceed the loss of any one of them. Since the loss of life entails the loss of all other rights, its judicial weight exceeds that of any other individual right.
Given the combined weight of this primacy of rights logic and our other arguments in the prior sections, I propose that the most proper historical and linguistic interpretation of the Due Process Clause in the Fifth and Fourteenth Amendments indicates that the unborn child has been implicitly viewed as a person under the Constitution within the predominant historical trend in United States abortion law, and especially by the founding fathers who authored the Constitution and its amendments. I haven’t proved this interpretation beyond a shadow of a doubt but it is a visibly better interpretation than that rendered by Justice Blackmun and the Supreme Court in Roe v. Wade in 1973.
Roe v. Wade an Untenable Decision
Justice Blackmun fails to establish his definition of legal ‘person’ in the Roe decision because both of his two lines of reasoning for holding it fail (linguistic use in other, irrelevant, sections and the mixed history of abortion law). Since the conclusions of Blackmun’s legal argument in Roe v. Wade all depend upon his definition of ‘person’ succeeding, the decision of Roe v. Wade itself is untenable. Roe v. Wade should therefore be overturned.
Since lack of an explicit definition of ‘person’ in the Constitution requires the Court to constructively interpret the Constitution regarding that term, the Court should at least do it, other things being equal, in a way that does not lead to absurd consequences or contradict any of our primary legal precepts. The definition of ‘person’, albeit only a partial one, provided by Justice Blackmun, i.e., an unborn child is not a person but a born child is, leads to the absurdity of having one identical twin born in one moment considered a person, and the unborn twin not considered a person for the interim between their deliveries. Killing one is murder, killing the other is not. Further, a premature baby born at 6 months is a person with legal protection, but a more fully developed unborn late baby at nine months is not.
There is no logic or reason in doing this. So why do it when we are not obligated to do it under the Constitution. It reduces the underlying logic of our felony laws for murder to an arbitrary and capricious standard when applied to children. Identical twins are simply that: identical. They must of necessity be treated the same under law, if the law is to be considered rational.
Another absurd consequence is that in a real sense we can say that the lives of some animals have more protection under law than our own children, and that we do not consider our own children persons. We cannot puncture the skull of a dog and vacuum out its brain, giving it no anesthesia without incurring the wrath of the law, however until the recent legislation outlawing partial birth abortion (2007) we could legally do this to an unborn child as many as seven months old, a child who had a heartbeat at 21 days and is fully formed otherwise—and too often did do it. The Supreme Court decision at Roe itself did nothing to forbid such a thing, and thousands of such atrocities were performed on human babies until recent legislation was forced through the Congress to stop it.
Justice Blackmun’s selective reliance in Roe V. Wade on trends toward a loosening of abortion law during the late nineteenth century, and then again just prior to 1973, as our proper guide was not justified. Oddly, his own earlier comments seem to contradict his assertion that women had significant opportunity for legal abortion in the latter half of the nineteenth century. He established that the initially operative British common law was very severe, commented that in the mid and late nineteenth century the abortion penalties became even more severe, and then said the same about the laws enacted after the Civil War: they were very severe. Where then was the lenient period? Apparently there was one, but in what sense should it be held to be the dominant theme.
A mere move in the direction of leniency does not establish that substantial leniency had in fact been achieved, or that it was proper, and certainly not that it constitutes the predominant theme in the history of United States abortion law. Modern periods such as the 1960s and 1970s cannot be assumed to be representative of the thinking of the authors of the Constitution/Bill of Rights. Justice Blackmun’s tactic of pointing to trends can easily be seen to be a double-edged sword that dissipates the strength of his argument. In the twentieth century, courts have consistently outlawed abortion for many decades, treating it very severely. Why aren’t those trends good guideposts? In the history of abortion law, following trends as guideposts results in a contradiction.
New York’s abortion law of 1828, considered to be the model for abortion law in the nineteenth century, termed abortion in late term manslaughter. Can manslaughter be rationally applied to the killing of non-persons? Common sense says no; it is too severe a penalty for a non-person’s death. The word “manslaughter” itself suggests personhood, and the same term is routinely applied to adults whose personhood is unquestioned. One would think a different legal category would be required for the killing of persons and nonpersons, even by accident.
Though the lenient period from 1969 forward is there as Justice Blackmun points out, we see here that there are also solid indicators in the history of abortion law that strongly suggest the unborn child was considered a person under the law. Consequently, the proper reading of abortion law in the nineteenth century is actually contrary to Justice Blackmun’s position of all unborn children being non-persons. The short-term trends he has identified either run counter to the larger theme of abortion law in the nineteenth century or they fall into the more modern period late twentieth century. They therefore do not suffice to ground a proper interpretation of the Constitution on personhood for the unborn.
Within the historical line of argument it seems to me that the most compelling factor is that the post-Civil War abortion laws were the closest in proximity of time following the enactment of the Fourteenth Amendment. They were implemented as written without constitutional challenge by the courts, and should be considered the most indicative of the opinion of the authors of the Fourteenth Amendment. Punishing abortion very severely, they logically imply that the unborn child is a person via the primacy of rights argument.
Granted the courts did not then, as they do not now, fully protect the unborn person as they should have—we have never given the unborn child full consideration much as we did not do for our Black citizens, Black persons, for far too long. However, given the tragic history of civil rights, we cannot rationally argue the continuance of a judicially supported prejudice simply because it was always done that way. Where a prejudice is present, logic or consistency of law, by definition, is not.
Having a partial, or even a severe prejudice, against a class of persons is not the same thing as literally intending to deny them personhood under the Fifth and Fourteenth Amendments. Citing a clear history of such prejudice does not logically imply non-personhood for those against whom the prejudice is directed: in this case the unborn child. If that form of logic were to be accepted as valid, Black people would not have equal rights today.
We do know this much: genetic science absolutely tells us that in pregnancy there are two living humans present, albeit one just beginning its development. I submit that the common sense default position is to assume that where two living humans are present two persons, albeit in different stages of being, are also present. This commons sense position is strongly supported by both science and religion.
II. Reasonable Doubt, Burden of Proof and the Legally Sanctioned Taking of Life
At a minimum, the history of abortion law and the ludicrous results of following Roe obligate us to consider the unborn in late term to be persons. Does the Constitution explicitly say the unborn at earlier stages of development are not persons? No. Why, then, is it reasonable to assume the authors of the Constitution, as amended, many of whom, and the foremost among them, having been described as Christian men with Bibles on their nightstands, have taken an atheistic twentieth century view of personhood, the culture of death, instead of the Christian view of their own nineteenth century that held a reverence for life? And, if we are less than certain of what their view was, doesn’t that equate to reasonable doubt? Aren’t we therefore obliged to assume the most conservative definition of ‘person’ falling within the range of options historically and logically supportable in order to comply with our own most fundamental legal precept of excluding reasonable doubt prior to legally sanctioning the taking of human life.
Burden of Proof
A closely related line of argument, in a sense the converse of the reasonable doubt argument, is that of burden of proof. It only stands to reason that the burden of proof lies on the side proposing to take life, not the side that proposes to save it. Roe v. Wade does not assume that burden.. Roe’s two-legged argument, based as it is upon the importation of linguistic definitions from unrelated contexts and the mistaken representation of the predominant theme in the history of state abortion law, fails on both legs, and having no weight of argument remaining cannot offset any burden at all.
III. The Report of Science, Philosophy & Religion Is as Fully In as It Will Ever Be
Critical Information from Science Since Roe v. Wade
Science has come so far since 1973 that the implied, though unstated, “trivial biomass” or “anatomical subsystem of the mother” view of the unborn child is now an antiquated and obsolete concept. Since genetic sequencing became possible at roughly the same time as the Roe decision we have known that a developing human organism with a unique genetic code different from the mother’s is present from conception. A living human individual is present, different from the mother.
Science now knows that the beginning of a new human life begins at conception, agreeing on timing of this critical event with the Catholic Church (see Catechism of the Catholic Church, 2319-2323) and many others in the religious community. The full report of science relevant to the abortion debate has essentially come in on human life since 1973 with the mapping of the human genome and the advent of advanced medical technology that enables the viewing of the baby from conception to birth. See New Ultrasounds Show Unborn Children Doing Amazing Things at LifeNews.com.
For all practical intents and purposes we can see it all, and we know it all, as far as the science side of the question of when human life begins goes. Medical science’s input on the issue of when life begins can now be considered to have been fully made. And the import of that input is clear: there is visibly a little human person residing in the mother’s womb, clearly as early as 12 weeks, possibly as early twenty-two days. As far as the first twenty days goes, why should we not acknowledge our obligation protect life as such, even if it is in the early stages of development prior to visible personhood?
The unborn child at that early point is merely following God and nature’s mandatory path to personhood, a path we have all had to tread to attain to independent life ourselves. Only twenty days difference, and the whole time the zygote/fetus is recognized as a human life by science and has a genetic identity different from its mother. And if one believes in the soul, and that that soul conveys the most important aspects of personhood, then those first twenty days should qualify as personhood as well because as far as we know God may assign the soul to a body even at that early stage, perhaps from the moment of conception.
Science can now tell us an amazing amount about the developing baby and the biological processes that go on even down to the cellular level and beyond. The fetus has a heartbeat as early as twenty-two days. At eight weeks they are fully formed in the human image. At twelve weeks they stretch and “walk” and rub their eyes. What could we possibly be lacking in physical data in 2006 relevant to the question of whether a human person is really present in the womb of the mother? What’s left to know of significance to the right to life question? Nothing—nothing conceivably relevant to the beginning of life issue. A baby rubbing its eyes is a baby, a beautiful, lovable, innocent little human person!
In Roe V. Wade, Justice Blackmun impliedly left the door open for future input on the issue of where life begins for science, theology, and philosophy. I submit that the verdicts of both science and theology on the question of when life begins are as fully complete as they are ever likely to be. Science has pretty well pinned down what it needs to know and there is now a clear predominance of right to life views in the religious community. This is not something that is ever likely to change back in the other direction.
Considering all of this, it would seem that a review by the Court is required to update abortion law to reflect the state’s compelling interest in the protection of actual human life at conception through early term vice merely potential life as the situation was viewed in Roe v. Wade. Justice Blackmun said, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.” (My emphasis) Justice Blackmun’s comment implies that, should the theologians, scientists, and philosophers reach consensus on when life begins, the court would be significantly better informed on the question of abortion and in a better position to address the issue. While as of 1973, Justice Blackmun said he could not discern a consensus, now in 2015 science and religion at least seem to have reached consensus. Philosophy, by its very nature to challenge, examine, speculate, and imagine, is not likely to ever reach an overriding consensus on anything.
Consensus in Medicine, Philosophy & Theology
As far as the Catholic Church is concerned, its doctrine on the infallibility of ecumenical councils requires there be no future policy change in the Church’s position on abortion. That position is locked in, forever firm and unchangeable as of Vatican II, the Second Vatican Council, held 1962-1965. Therefore, from the Catholic perspective, theology’s input has been made on this question. There are a few diverging opinions regarding abortion within Protestant communities and those of non-Christian religions, but right to life for the unborn position is the prevailing theme. There are no visible reasons to expect that to ever change.
Regarding philosophy’s input, I don’t think the Court should wait on the verdict of the philosophical community. Having studied philosophy intensively for four years in college I can tell you that there is no built in requirement to ultimately find or to even tell the truth in philosophy. Philosophers are only obliged to seek the truth. Should philosophers reach consensus on what the truth is they would all be out of work. J
Seriously though, we actually should not wait for a consensus in philosophy on the beginning of life/legal personhood for two very good reasons. First, philosophy is by nature a very free-thinking and speculative enterprise, at least as far as theory construction. There is and will always be a strong tendency for divergence in thought on most if not all subjects, especially topics that traditionally have been so intrinsically mysterious and deep as the beginning of life and human personhood. And, unlike science, theories in philosophy don’t have to be testable; they can live forever on the debating floor with no possibility of final resolution.
Second, philosophy itself has no verification methods of its own with which to resolve disputes of fact—only science and religion have verification methods to resolve disputes of fact. Philosophy can only resolve errors in reasoning.
Although many philosophers have proposed, and may yet propose, ontological theories which relate to the questions of personhood and when life begins, the only methods of verification of those theories belong to science (scientific methods for empirical verification) and religion (direct spiritual perception, revelations, and the inspired written Word of God). (Some would say that religion has no valid verification methods either. I disagree with that position. I address that question at some length in the second part of my book, Evolution-Smevolution at http://matthew1026.com/.)
There is absolutely no reason to expect a consensus to ever develop in a philosophical community that is eternally exploration oriented, speculative and adversarial by nature, and has no methods with which to verify issues of fact. Fortunately, courts are also experts at reasoning and so the courts can complete the evaluation of our knowledgebase on right to life by applying logical analysis to the facts presented by science and religion.
One might object that philosophers may come to a consensus based upon some synthesis of ideas resulting from the application of reasoning methods alone, exclusive of fact. Our response is that those reasoning methods have been around for a long time, and we do not appear to be heading toward consensus in philosophy as much as away from it—very possibly because attempts have been largely speculative and exclusive of fact.
As a reasoning vehicle, this article itself may be considered one of the inputs from the field of philosophy. It is demonstratively in favor of the right to life of the unborn child.
Therefore, there is no reason for the Court to wait longer for a review of right to life law pending the future input of new evidence from science, theology, and philosophy impliedly invited by Justice Blackmun in Roe V. Wade. In science and theology so much has been done, and so little else is possible in philosophy. In light of this I think the urgency of the question demands we proceed with a reconsideration of Roe v. Wade.
IV. Three Alternatives: Some, None, or All—A Process of Elimination
Here is another input from philosophy, an argument from elimination. In order to develop this argument for personhood for the unborn child, we need to first consider one of the criteria that have been proposed for personhood in the history of abortion debates: the developmental criterion. The first thing to note about the developmental criterion for personhood is that it does not rule out personhood for the unborn universally, but only for those not yet having reached some thought-to-be critical stage of physical development.
Now, if the Constitution were using a developmental criterion for personhood, it would be obliged to speak explicitly to what that critical point of development is somewhere within the text of the Constitution in order to permit application of the law to various cases. However, it does not specify any prerequisite point of development. Therefore, one may properly conclude that the Constitution does not employ a developmental criterion for personhood.
Keeping that in mind, let’s proceed a step further with this argument. Logically, the question of personhood for the unborn appears to be one of three and only three options. Either no unborn children are persons, some are and some are not depending on their point of development, or all unborn are persons from conception: none, some, or all. I bother to mention the flagrantly obvious here because the key premise of my argument is that the use of developmental criteria is the only coherent means of supporting the second alternative, “only some unborn are persons,” the only type of criteria that makes any sense when differentiating between different unborn children regarding their qualifications for personhood.
I argue that this premise is true because the purpose or function of a definition is to attribute significant characteristics to that which is being defined. None of the other proposed criteria for personhood say anything significant about the child except the various developmental criteria.
The leading example of a criterion that makes no sense is Justice Blackmun’s criterion, birth, which only says something about the mother’s term of pregnancy, not about the child’s own attributes. The development of a child from conception to birth reflects a radical change in physical characteristics over the term of the pregnancy and even beyond birth when the child, particularly the premature one, continues to physically develop significantly. This reveals that birth can often be the functional equivalent of an “accident” on the baby’s developmental timeline, not signifying the presence or absence of any particular characteristic or stage of the child’s development at all.
Using birth as the critical part of a definition of legal person does not work because it does not ascribe any significant or meaningful characteristic to the candidate for personhood except a physical separation from the mother, relocation from inside the womb to outside. The newborn is still fully dependent upon the mother.
To define something so critically important, even to life and death decisions, as personhood based solely upon a change of a few feet in physical location is not rational. On the other hand, to define personhood based upon development of significant physical, mental, or spiritual characteristics of the candidate (to include the presence of the soul, from the religious point of view) is rational. Given, then, that these three options (no unborn are persons; some are and some are not; or, all the unborn are persons) are the only ones, and that the use of developmental criteria is the only rational way to apply option two, we can form a philosophical argument that purports to actually deduce that considering all unborn children persons is the best interpretation of the Constitution. That argument can be laid out as follows.
Premise #1: There are only three possible (rational) interpretive options for the Constitution’s criteria for personhood: (a) all unborn are persons, (b) no unborn are persons, or (c) only those who reach a specified point in physical development are persons.
Premise #2: Birth does not signify a point in the physical development of the child; it is a point in the development in the term of pregnancy of the mother. It occurs inconsistently at different lengths of term for different women and circumstances. Some children are born at six months, some at nine months. Therefore birth cannot be construed as a point of the child’s development, and cannot be used as a developmental criterion for personhood.
Premise #3: If the Constitution, as amended, were using a developmental criterion, the authors would have been compelled to make the criterion known to permit proper application of law. This they did not do.
Conclusion #1: Therefore the Constitution does not employ a developmentally-based definition of persons.
Conclusion #2: Therefore the Constitution either considers all the unborn persons, or none of the unborn persons.
Premise #4: From the primacy of rights argument given earlier it is made clear that all of the available interpretive guideposts, linguistic contextual clues in the Fifth and Fourteenth Amendments, and the history of abortion law, argue that at least some of the unborn (the late term babies) are persons, as does logic and common sense.
Conclusion #3: The best evidenced interpretation of the Constitution’s definition of person, indicating as it does that at least some unborn children are persons, is compatible with only one of the two remaining alternatives: all the unborn are persons. Therefore, we conclude that that alternative is the correct interpretation of the Constitution.
V. Inconsistencies in the Application of Right to Life Law
The right to life of some adult invalids and comatose accident victims with little or no functionality and substantially negative prognosis are (at least viewed by some states as) protected under the Constitution while unborn children with fully positive prognosis are not protected. In many cases, the functionality of the two groups, or the lack of it, is very much the same, i.e., they are fully dependent upon others or medical machines operated/maintained by others.
What is the significant difference? Is it because the unborn child lacks awareness or consciousness? If the lack of consciousness or awareness were a sufficient prohibition to personhood, it would be legal to kill us all in our sleep (and perhaps selected other “senior moments”). The comatose patient has the same deficit and a less positive prognosis than the typical unborn child, and yet they are protected under the Constitution. Some patients are comatose for longer than six months, longer than nine months even, with slim positive prognosis, but we do not authorize the killing of these people until all hope is gone. They are still considered persons—and rightfully so. Some do wake up and some regain substantial functionality, and we cannot say who will or will not make such progress.
What can we point to that is different about the child, i.e., that is not also true of some invalids and patients whose right to life is protected under the Constitution? Nothing I can think of, other than the fact that the one group are young children, still internalized in the mothers body—an unavoidable condition clearly intended by nature to occur for which we would not want to penalize the child with a death sentence. We have all been there, though many seem to have forgotten their origins.
Apparently, we have considered unborn children (politically, for science does not so consider them) simply either an actively growing (cell reproduction) but yet somehow nonliving biomass, or a living biomass having its own unique human genetic code that, nonetheless, somehow doesn’t qualify as human. Scientists will tell you the first is a contradiction and therefore untrue—if it’s growing via cell reproduction it’s alive. Scientists will also tell you the second is untrue; the genetic code is our best standard to determine the presence of absence of humanity, and a sure basis upon which to individuate distinct human beings from each other.
Now, if that biomass that is actively growing is alive, and it is human, why isn’t it then a developing person whose life is protected under the Constitution? Why is the unborn child not a person pending its doing nothing more than following God and mother nature’s own prescribed course of growth and development—and doing it in a very rapid way?
Philosophically, denying personhood for the unborn is supremely difficult to defend because from the moment of conception the zygote, fetus, and embryo remain physically continuous with the later born child/person. On religious grounds it is generally impossible at least at the fetus stage of eight weeks where the human form is achieved (the ancient rule in the Middle East). One could plausibly argue that ancient rule would be updated if the heartbeat at twenty-two days were discovered. The Catholic rule of life’s being worthy of protection at the first moment of conception is, of course, well known. This rule makes sense both because there is a living human present from conception and because the exact moment that God assigns the soul is an unknown. The presence of the soul from the first moment of conception has not been ruled out, and there are theological points, such as the Marian doctrine of the Immaculate Conception, that suggest this is precisely when the soul is assigned.
Church authorities will decline to affirm any definite entailments there, but St. Mary was purified of all taint of original sin at the first instant of conception. This suggests the soul being present at conception, but doesn’t technically require it. The body and soul could be purified separately and later joined, but for some reason it seems more intuitively correct to assume that such a thing would be applied to the whole person entire.
The language of the doctrine at Catechism of the Catholic Church 491 suggests this in saying “Mary…was redeemed from the moment of her conception” rather than “the developing body of St. Mary and the unassigned soul of St. Mary were redeemed at the moment of her conception, suggesting that the whole person was present at conception. Not actually knowing when the soul is assigned, the Church had little choice in what language to use because to say it the way I have just done to belabor the uncertainty actually suggests the opposite, that there were definitely two separate parts of the person at the time, and it also distracts from the point being made about St. Mary’s purity. Certainly the way the Church chose to say it is more elegant and the same language remains appropriate even if the soul was assigned after conception. The point being made is solely that St. Mary never lived for an instant under the taint of sin, rather than that her person was metaphysically constructed from separate parts at a given point in time. But the language is suggestive enough to remind us that we don’t know that the soul is not present at conception, which means we may be killing a child every time abortion occurs no matter how young the developing child is.
Intuitively, the whole Roe v. Wade analytical tact seems artificial (and quite frankly, meaningless), i.e., distinguishing a living human child in development from a human person. Perhaps that is exactly why the authors of the Fifth and Fourteenth Amendments did not define person: they saw no need or sense in distinguishing a “human person” from a “human being” at any stage of development. I see no need or sense in doing it either.
We should also anticipate the objection that the sense in which there is life at conception is trivial and unimportant for legal purposes. A biologically active entity capable of having a human heartbeat only three weeks from conception is not just alive in a trivial sense; it is fully and importantly alive. John Cogan, of Science for Unborn Human Life, says the newest technology has confirmed a heartbeat as early as twenty-two days after conception.
Common sense tells us that anything as counter-intuitive as considering a living human to be anything other than a person would need to be fully justified by explicit argument. The Constitution itself did not attempt such an argument, and Roe v. Wade failed at it. Therefore, prior to additional sound argument to the contrary, the default common sense interpretation must be that all living human beings are to be considered persons. The burden shifts to the other side of the debate to establish that they are not.
VI. The Problem of Social & Legal Uncertainty
The Case of the Eleven Boxes
It is compelling from an intuitive, common sense, and moral perspective (and perhaps revealing) that our youngest children, the unborn, unquestionably 100% innocent both in their own being and from the point of view of criminal law, receive less protection than criminal suspects with extensive felonious track records—and more protection than some animals. Notwithstanding the honest and extensive divergence of both expert and lay opinions on the issue of abortion, and even on the technical aspects of constitutionality, we have, in my opinion, proceeded rashly in regards to the safety of these children. We have ignored the reasonable doubt that has been blatantly demonstrated by the public record of disagreement in a manner similar to that depicted in the following story.
Let’s suppose there is a man, Mr. Brown, who owns a house near a railway. While out gardening he has inexplicably been rapidly surrounded and trapped by eleven heavy cylindrical boxes. He cannot get out. The boxes have apparently come from a nearby railway accident where the results of some new genetic material experiments were being transported to a military base.
The new material is very durable, and enormously heavy. In fact, it gets heavier as it dries or sets, once exposed to outside air, interacting with the atmosphere in a new and powerful way so that it becomes too heavy to be moved by any existing equipment. Apparently, these particular cylinders were designed to be self-inflating chemical/biological warfare shelters, and they have oxygen, food, water and sanitary storage compartments inside to last a year for one person or a month for twelve persons. Mr. Brown is fortunate that one of the cylinders, the eleventh, was so badly damaged as to leave him access to it from the inside of the entrapment—he can survive for an extended period pending rescue.
Once the outer wrap is taken off these items, or punctured, their Jello-like consistency begins to harden, and within an hour it is impenetrable—though prior to that time a person can force their way through the stiff jello and enter the cylinder. Apparently, and perhaps tragically, that is exactly what has happened here, times five. According to witnesses, eleven of the cylinders, outer wrap torn by the derailment of the train, were tossed from the rail car onto the embankment, and were sitting on the very edge of the rise overlooking Mr. Brown’s house. Sadly, five of the neighborhood children happened by and, seeing the Jello-like objects, began to explore and wound up inside shortly before hardening set in. In an effort to get out they toppled not only their own cylinders, but the other six as well which rolled down the slope to where they now rest surrounding Mr. Brown in his garden.
As the cylinders rolled and tumbled down the long bank the witnesses lost track of them so that they can no longer say which cylinders contain children and which do not. Also, apparently the cylinders retained enough elasticity that they flattened slightly, bonding and sealing to each other such that Mr. Brown, slim and trim as he is, has no hope of squeezing by to freedom—he is fully trapped, although the air flow from the top is just adequate for him to breath.
All is not lost; he has his cell phone. He called the fire department. They called the railroad. They called the Army. They called the army scientists, who then called Mr. Brown to explain the situation further. He needn’t worry, he will be out of trouble in nine months when the cylinders’ molecular structure naturally degrades—the experiment is not final and, in its interim form, it is still an unstable compound—he just has to wait. He can just see the colonel’s “problem solved” expression over the phone.
Nonetheless, he is not happy with that answer because, due to his current business arrangements, he will lose a lot of money in those nine months. Further, the scientists tell him that the outside of the cylinders when exposed to air degrade in such a way as to release a nauseating gas that will cause him severe discomfort for several of those nine months. Of course his freedom is severely restricted. Further, this gas is mildly toxic and has been shown to produce internal benign growths up to several pounds, which cause significant discomfort, but can be safely removed by surgery nine months later when the natural degradation of the material sets him free. In effect, Mr. Brown is “pregnant,” at least that is the way it will feel for nine months.
Mr. Brown wants none of it. He asks that the Army or somebody move the cylinders immediately, but is told that this is impossible; they have become too heavy. The only way to free him is to use a special low-grade incendiary, which causes the substance to ignite and burn with moderate intensity. An escape route would be made, but it would mean certain death for anyone inside the cylinders due to toxic fumes from the burning, and it would put Mr. Brown at some risk himself. He replies that he doesn’t want all the cylinders destroyed, just one so that he has an exit from all these unwanted burdens, discomforts and expenses.
The problem is that five of the cylinders contain children and five do not. The eleventh cylinder, the one that is breached internally so that Mr. Brown has access to its contents, sits just inside the ring of ten—rescuers have no access to it. If rescuers decide to try to free him by destroying one of the ten external cylinders, they won’t know whether they are destroying a child in the process or not, because they don’t know where these young persons are and where they are not.
What should be done? What can be done under law? The local officials have called the state’s Attorney General who informs them that if they proceed and a child is harmed it is manslaughter at a minimum because they know that somewhere in this group of cylinders there are children present. They are consenting to endanger a child’s life by proceeding. They know that Mr. Brown and the children will otherwise survive the nine months. They know the child will not survive the rescue procedure if they guess wrong about whether there is a child present or not. By choosing to place the child’s life at risk for the sake of Mr. Brown’s profit and convenience they will have done nothing different than a common murderer for profit. Mr. Brown’s profit and convenience, of course, does not outweigh those young persons’ right to life under the Fourteenth Amendment of the Constitution of the United States.
I submit to you that this is precisely what we have done in the case of abortion some 55 million times since 1973. We have taken the lives of innocent children while not yet knowing, as a society, where these young persons were and where they were not. Justice Blackmun himself said there was no consensus in law, science, and religion on a criterion for personhood. What that means is that we went ahead blindly with the legalization of abortion, knowing children might be present, but choosing to take the path of convenience for ourselves, the adults.
Why do I say that we didn’t know where the children might and might not be? By attempting to construct or justify a definition of ‘person’ instead of referring to one already established in constitutional law, Justice Blackmun revealed that prior to his attempt in 1973 there was no definition of ‘person’ established in constitutional law.
For over two hundred years, then, we have been applying right to life law, making life and death decisions about children, without ever having established who were (small) persons protected under the Constitution and who were not.
Where legislation is truly silent it is folly to attempt to construct imaginary interpretations that can never find proper grounding. Where issues of life and death are involved, this is an invitation to disaster. Given our contention that Roe has failed, we are left with exactly that dilemma, lacking a proper grounding for right to life law. We desperately need an amendment to the Constitution that addresses the unborn question, as well as providing state-to-state consistent right to life standards for persons dependent upon life-support, the comatose, and perhaps for newly arisen situations resulting from the advance of science such as genetically cloned or genetically modified “people.”
It is time not only to provide a defensible definition of ‘person’ to restore legitimacy to right to life law and the most important provision of our most important legal document, but to do it in a way that makes sense, is visibly moral, fair, scientific, and humane: in short, constitutional. For the Constitution not only is a moral document, it is the moral document, and it is our moral document.
In the meantime, we just don’t know when a young person is present and when they are not. Yet we continue to “destroy all the boxes.”
I will move to a subject that is very difficult to discuss because it is so heinous: partial birth abortion. Since this article was first drafted, partial birth abortion has been made illegal as of 2007. (Thanks be to God!) I have chosen to keep the discussion because the Supreme Court’s decision in Roe v. Wade does nothing to make partial birth abortion illegal. Protection of children against this pagan horror is therefore still not grounded in the Constitution, though it is now present in federal law.
In the case of late term or partial birth abortion the situation is clear as to where children are really present because, by analogy, we can in effect hear them “screaming” from inside each cylinder “There is a human person in here!” by virtue of our intuitive understanding that the fully formed and physically animated small human being destroyed in partial birth abortion can be nothing less than a delicate young human being: a young person. We know it because we can directly perceive it. We intuitively know these are young people, for there is and can be nothing to distinguish them from young people.
Yet until quite recently we continued to kill these children under guise of law via direct consciously intended physical attack. A long hard-fought congressional battle was finally won on their behalf in 2007. We continued to puncture their skull and vacuum out their brain while they were yet alive (with no anesthesia) to facilitate the (major, but temporary and limited) convenience of the parents—again, this was being done to fully formed animated children.
Finally, if we are going to base constitutional right to life law on Roe, we should at least be consistent and not circumvent that decision with legal technicalities. The victims of partial birth abortion are clearly born children, for the larger part of the body is already delivered outside the mother, and the process cannot be reversed. The head is only precluded from being delivered for the express purpose of collapsing it to ease the delivery—killing the born child in the process. This is a blatant circumvention of the law. It is a transparently artificial subterfuge meant to avoid violation of even that most liberal standard of personhood established by Roe v. Wade, i.e., a born child is a person, an unborn child is not. If an insane or evil doctor were to do this procedure to a child that the mother wanted to keep at the last second of delivery it would clearly be murder, or rather should be in the common sense view of things for who knows what the law considers it to be, and in which states. Does having a second or third person (the mother, father, and doctor) agree to murder make murder legally acceptable?
Partial-birth abortion is performed in the second or third trimester. The partial-birth abortion procedure is performed as follows. A breech delivery is induced; the legs and torso are delivered; the back of the skull is punctured; and a suction curette is inserted into the skull. The brain is suctioned out so the skull may be collapsed.
Insanely, this procedure is legally held not to constitute birth because under common law (common law is not even a published law of our government; it is something courts still recognize at times that was in effect during colonial days, inherited from Great Britain) the passage of the head has always been considered to be the essential element of birth. Of course the head is eventually delivered in partial birth abortion, but before it is the baby has already been killed by the doctor. So the event is then not considered a live birth under law and the child has no legal right to life based upon a fully ridiculous technicality.
Obviously the law derived from Roe that grants right to life protection to a born child has been intentionally worked around here, cheated in these cases exclusively for the express purpose of killing the baby. Partial birth abortion was nothing but a pagan barbarity, a horrible crime against an innocent child. Thank God it is now forbidden by federal law.
Clearly, in permitting this procedure, this crime, against the unborn children, we ignored all common sense, logic, fact, reason and humanity. The child although predominantly delivered, and therefore, born [they cannot stuff the child back in] was not considered born under Justice Blackmun’s criterion of person in Roe v. Wade—why not? We could easily so consider it since there is no logical or scientific reason to consider these children anything else but born, and no humane reason to even contemplate such a heinous crime against them. But we opted for death instead of life.
Federal law has recently removed this threat but the Constitution itself should do the same in a more permanent manner. For the whole approach of Roe to be even coherent and non-ludicrous, the legal definition of “born” must be explicitly codified into the Constitution to make clear that there is no artificially contrived third alternative to being fully and viably in the womb or born. Once the option to remain viably in the womb is gone the child must be considered born.
Right and wrong exist! Through the history of civilization morality has been the grounds for law, not personal convenience. Morality is not grounded in technicalities. Religious people would say the wisdom to discern right and wrong, good and evil, comes from the Holy Spirit within us. It comes from our heart. We need a constitutional amendment that puts that moral grounding back into our nation’s right to life law. As we used to say in the Air Force, it’s time for a “package check.” Do we have the courage to do it or not? Our children are depending on us. A large step forward was accomplished in 2007 by the passage of the Partial Birth Abortion Act, but there is still critical work left to do.
For the sake of our children we simply have to fix this. We were vulnerable children once, existing in our mother’s womb at the mercy of the compassion of our family, our society, and its laws. Our safety was completely in the hands of others—the adults who ran things. They toiled, fought and sacrificed to get us safely to adulthood…and what have we done: thrown away their hard fought progress for a moral nation and made a complete mess of things for our own and future children.
The Constitution, even as presently imperfectly written, permits us to save these children. Logic permits us. Science and fact permit us. Legal precedent permits us. The Church implores us to save them. Therefore, we, we, the citizens, leaders, legislators, and courts of this land at this moment are free to save our children from the horror of abortion. We can do this by first accomplishing the proper interpretation of the Constitution that overturns Roe v. Wade and then follow up with an unambiguous constitutional amendment that protects the unborn child’s right to life in more durable long-standing terms.
The Constitution itself is a moral document, as is the Declaration of Independence. Our government is a moral government. Everyone I’ve met in my sixty years’ experience knows that. Ironically, foreign immigrants in particular seem to know it best. They know the value of what we have here in the United States. Tragically, the question has become, do we still know it.
Our Fourth Grade teachers insisted on our acknowledging the moral foundations of our system of government, and the religious heritage of our nation. They were right; the Supreme Court in Roe is wrong—we should still ground our law in morality not recreational sex and selfish personal convenience. We should keep God in country while still honoring the separation of Church and state where it applies—and we should not kill our own children. This thing that we have been doing in partial birth abortion, this horror, was exactly what it appeared to be: it was an evil thing. A moral document would not allow such a thing.
Our fourth grade teachers emphasized something else we have forgotten: the Constitution provides for its own amendment—it is self-correcting, and it invites and expects its citizens to be the same. Despite the greatness of our Constitution, it is very poorly written regarding the concept of personhood as pertains to the rights to life, liberty, and property, especially from the perspective of modern requirements.
For the sake of our innocent children we are called to step up to this task of constitutional amendment and make use of one of the greatest strengths of our Constitution: the option to amend and correct. We are called to do this, by the democracy-inspired spirit of our righteous founding fathers, the spirit of freedom and justice. We are called by Almighty God himself, to once and for all resolve any doubt about the Constitution’s protection of a child’s right to life.
This is a call we dare not refuse. To do so is to deny our own humanity and to risk the wrath of God. We must amend in the same heroic spirit that our country’s guiding document was originally created: for good and for right. In the interim, we must interpret the Constitution the same way: sanely, logically, scientifically, legally, compassionately, fairly…and with common sense.
Proposed Definition of ‘Person’
The constitutionality of taking the innocent lives of unborn children fully depends upon whether they are considered persons by the Constitution or not, and on nothing else whatsoever. Although ‘person’ is not explicitly defined in the Constitution, the nation and the courts are expected to permit or preclude the taking of human life in conceptually vague and borderline circumstances, or politically contentious ones, as if we had clear and concrete criteria available to decide such issues when we do not.
I acknowledge that the Supreme Court claims to have provided an answer in Roe v. Wade, but, as argued above, the Court’s argument there visibly fails. In any case, it falls far short of the strength of unequivocal argument needed on life and death issues. It is a poorly argued decision whose weakness of argument borders on the arbitrary. In the presence of constitutional silence on the question of abortion all such decisions may, of logical necessity, be arbitrary. In any case the decision is not nearly good enough to justify the taking of thousands of our most innocent lives every day—our own children.
Considering the unborn child a person for purposes of the Fifth and Fourteenth Amendments to the Constitution from the moment of conception is more intuitive and more compatible with science, philosophy and religion. It avoids the clearly absurd consequences of the alternative. It is, on the surface, more supportable as a valid historical interpretation of the thinking of the authors of the Fifth and Fourteenth Amendments.
The specific definition, proposed below, works better for science both ethically and pragmatically. Practically, it provides a coherent and useable physical standard to judge personhood within the uncertain arena of genetic engineering. Ethically, it allows medical doctors to keep the original Hippocratic oath with its preclusion of abortive remedies, and admonition to first “do no harm.” This definition does not conflict with the Constitution as written. Therefore, all things considered, it is the best definition for ‘person’ we can arrive at.
Birth, on the other hand, is arguably the worst criterion we can arrive at because it says nothing significant about the individual being evaluated for personhood. Considering we are dealing with life and death issues, adopting anything less than the best definition of ‘person’ we can construct is unthinkable and raises serious questions of motivation and moral integrity. To avoid the serious practical, moral, and logical problems inherent in any other definition of person, the following definition of person (or something closely akin to it) should be adopted for current interpretive use, pending inclusion of that definition into the Constitution by way of an amendment:
A ‘person’ for purposes of constitutional right to life law is a living human. Human life begins at conception. More technically, a ‘person’ for purposes of the protection of the right to life under the Constitution of the United States of America is defined as being a biological entity possessing what is identifiably the human genetic code, which shows signs of life, cell division etc. Situations where two distinct individual human genetic codes are present in conjoined living organisms (pregnancy for example) imply without question the existence of two persons, both warranting equal protection under the due process clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States.
Adopting this definition of when life begins and attributing personhood to the unborn child at the same time avoids all the serious logical problems, absurdities, constitutional vulnerabilities, vagueness and uncertainties of our current Roe v. Wade-based position. It resolves the problem of having some profoundly serious considerations in criminal law grounded in uncertainty and reasonable doubt. It provides a viable basis, currently lacking, to adjudicate the personhood questions that may arise from anomalous, imperfect or unintended results of attempted genetic engineering of human beings—which may occur at any time. It allows us the dignity of considering our own developing children ‘persons’ and to afford our children as much consideration under law as we give dumb animals. It restores moral, legal, and logical integrity to the very core of our legal system which now takes lives based upon a single case decision rendered at the level of the highest court in the land whose logic and factual arguments can all be demonstrated to have failed.
This proposed definition of ‘person’ is, of course, a very intuitive definition, one that might have fit well with the mindset of the authors of the original Constitution, and many of its amenders, said to be Christian men with Bibles on their nightstands, men not likely to consider their developing children non-persons. If logic, legal history, common sense, nature, science, medicine, theology, God, our own eyes, and our own conscience are all telling us that where we have two human genetic codes in living biological organisms we have two human persons, perhaps it is time we listened.
To close, the situation with abortion was summed up by Mother Teresa in an Amicus brief supporting a petition to the United States Supreme Court in words more eloquent than you will ever hear from me.
America needs no words from me to see how your decision in Roe v. Wade has deformed a great nation. The so-called right to abortion has pitted mothers against their children and women against men. It has sown violence and discord at the heart of the most intimate human relationships. It has aggravated the derogation of the father’s role in an increasingly fatherless society. It has portrayed the greatest of gifts—a child—as a competitor, an intrusion, and an inconvenience. It has nominally accorded mothers unfettered domination over the independent lives of their physically dependent sons and daughters. And, in granting this unconscionable power, it has exposed many women to unjust and selfish demands from their husbands or other sexual partners.
Human rights are not a privilege conferred by government. They are every human being’s entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign. . . .
I have no new teaching for America. I seek only to recall you to faithfulness to what you once taught the world. Your nation was founded on the proposition—very old as a moral precept, but startling and innovative as a political insight—that human life is a gift of immeasurable worth, and that it deserves, always and everywhere, to be treated with the utmost dignity and respect.
Read the Full Text of Roe v. Wade
 From “Evangelium Vitae,” an encyclical of Pope John Paul II, as excerpted in Abortion Opposing Viewpoints, Tamara L. Roleff, editor.
 I am not proposing that we consider invalids non-persons. Once a person always a person would seem to be a safe rule.
 Cross v. New York City Transit Authority, 417 F.3d 241 (2d Cir. 08/02/2005), citing the United States Supreme Court at Cook County v. United States ex rel. Chandler, 538 U.S. 119, 129 (2003).
From the Fourteenth Amendment to the
 Nathan Schlueter in First Things, #129, pp. 28-36 : “…today there can be no scientific disagreement as to the biological beginning of human life. Embryology, fetology, and medical science all attest to the basic facts of human growth and development, and medical textbooks for decades have declared that distinct and individual human life begins at conception.” http://www.firstthings.com/author/nathan-schlueter
 My primacy of rights argument is essentially the converse of the argument Mr. Justice Blackmun presents: if the child were not a person we could not have decided against the mother’s right to liberty to have the abortion via the states’ numerous severe criminal abortion laws in place almost universally until 1973.
 The Second Vatican Council, Vatican II, convened 1962-1965, affirms the Church’s policy against abortion from the moment of conception in section 51 of the document entitled Church in Modern World. Declarations of ecumenical councils are infallible and cannot be contradicted by other fallible organs of the Church, including individuals, no matter how highly placed, and explicitly supersede all previous Church pronouncements on the same subject.
Once an ecumenical council declares what is right to believe on an issue of faith and morals, it is infallibly established as true once and for all and henceforth can never be contradicted. This was done on the abortion issue eight years prior to Mr. Justice Blackmun’s decision in Roe v. Wade. The documents of this council and the fact that the Church assigns infallibility and permanency to them were available to Mr. Justice Blackmun and his Court. This shows Mr. Justice Blackmun’s remarks to be misleading. By referring to past disagreements in the Catholic Church he arbitrarily selects and gives preference to the past over the present, misconstruing as if they were uncertain a Church whose views were certain at the time of his writing. This matches his arbitrary selection of periods of lenient state law over strict periods as representative of the legislative history of abortion law.
An explanation of the infallibility of Church decrees published in the documents of ecumenical councils is given at the Catholic Encyclopedia Web site. See the entries on infallible, Magisterium of the Church, ecumenical council, and papal infallibility
 Professor Lee Silver, Princeton University, in Remaking Eden, Avon Books, Inc., New York, 1998, p. 68
 Nadler, Richard, "Abortion and Traditional Judaism: Feticide in the MeAm Lo'Ez," Human Life Review, Summer, 2001, a fascinating free article at http://www.humanlifereview.com/~hlrfound/index.php/archives/15-2001-summer/25-abortion-and-traditional-judaism-feticide-in-the-meam-loez.
 John Cogan, Science for Unborn Human Life, e-mail 25 September 2003
 For an interesting discussion of genetic science-related concerns, among others, see Ellen Wilson Fielding’s "When 'Rights' Collide," a free article offered by Human Life Review Fall, 2001 at http://www.humanlifereview.com/~hlrfound/index.php/archives/17-2001-fall/28-when-qrightsq-collide
 George, Robert P, and William C Porth Jr., “Brief Amicus Curiae of Mother Teresa of Calcutta, in Support of Petitioners' Petitions for a Writ of Certiorari,” in Alexander Loce vs. The State of New Jersey.