Endnotes to Part 10: Death of a Child
26. The court appoints a “guardian ad litem”, or person as guardian of the minor child for the purpose of the litigation. Individual states determine this procedure generally. In the case of an unborn fetus, I know of no precedent whereby the fetus acquires status as a person, leading to status as a litigant, before birth. The point I am making in this paragraph is that the fetus in Roe v. Wade, even before the case came to the Court, was in a highly vulnerable position legally: without recognized person status, without representation; and without even a name or designation. An important step the individual states can take to anticipate a reversal of Roe v. Wade is to amend their own state constitutions to confer “person” status on the unborn child, and to accord that child equal protection of the State laws.
27. The question of a human life having “person” status under the Constitution had been considered only once before in the history of the Court. The “Dred Scot” decision of the Civil War era considered whether a slave was a person entitled to sue for his freedom because his master/owner had moved with him into free territory from a slave state. The Court held that Dred Scott was and remained property, and did not acquire the status of a legal person because of the accident of where the “property” might be located. It may be a “sign of the times” that the Church’s moral outrage over the Dred Scot decision of nearly 150 years ago was not repeated in response to Roe v. Wade.
28. Justice Blackmun wrote as follows:
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 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.
[ 35 L. Ed. Page 160]
It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question. There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics.*fn56 It appears to be the predominant, though not the unanimous, attitude of the Jewish faith.*fn57 It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family.*fn58 As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid.*fn59 Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.*fn60 The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this “ensoulment” theory from those in the Church who would recognize the existence of life from
[ 35 L. Ed. Page 161]
the moment of conception.*fn61 The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a “process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the “morning-after” pill, implantation of embryos, artificial insemination, and even artificial wombs.*fn62
[95] In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. For example, the traditional rule of tort law denied recovery for prenatal injuries even though the child was born alive.*fn63 That rule has been changed in almost every jurisdiction. In most States, recovery is said to be permitted only if the fetus was viable, or at least quick, when the injuries were sustained, though few
[ 35 L. Ed. Page 162]
courts have squarely so held.*fn64 In a recent development, generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries.*fn65 Such an action, however, would appear to be one to vindicate the parents’ interest and is thus consistent with the view that the fetus, at most, represents only the potentiality of life. Similarly, unborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem.*fn66 Perfection of the interests involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense.
[96] X
[97] In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches
[ 35 L. Ed. Page 163]
29. The correct and better judicial principle to follow would have been to defer to the State of Texas if indeed there was such an unsettled question on an issue as fundamental as the commencement of human life and “person” status. Blackmun’s fallacy is: he could not confer the right to abort unless concluding at the same time that the destroyed fetus was not then, and could not later be determined to be, a human life having “person” status. Effectively, Blackmun determined the very issue he claimed lacked sufficient evidence or reason to determine.
30. Griswold v. Connecticut (CITATION)
31. As stated by the majority in Roe v. Wade:
The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts,197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).
[86] We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. 32. The world itself, seen from the perspective of distant space, appears much like a womb precariously supporting all of biological life.
