Sharing Life — Abortion, Stem Cells, Euthanasia, Intelligent Design, Reproduction Technology

What is a “Person” Under the Constitution? (And Why Does It Matter?)

“We the People” have set out restrictions upon ourselves by our federal Constitution to prevent both the federal and state governments (and their judiciaries) from taking from “persons” the “Blessings of Liberty to ourselves and our Posterity”. “Personhood” under the federal Constitution is a requirement if you are to assert and enjoy the protections of the Constitution from governmental action. For example, only a “person” can invoke the equal protection of the laws to challenge a racially discriminatory application of the death penalty.

Without the right and protection of “Life” there can be no “Blessing of Liberty”. More fundamentally, without the protection of fetal human life, even our “Posterity” is under attack by the very government we formed to protect it.

Therefore, the question of what is “human life” and who are “persons” is a fundamental question. Is a pre-born human life a “person” entitled to the protections against the taking of life without due process of law and equal protection of the law? If so, then neither the individual States nor the federal government can take that life with any fewer protections than that accorded to persons charged with capital offenses.

Of course, enacted laws rationally allocate rights differently among “persons”. Minors and “incompetents” are denied certain “rights”. Persons over age 65 acquire rights to social security. Disabled persons are protected by the “Americans with Disabilities” Act. States protect children from physical abuse and from being forced to work. Yet all “persons” share one right guaranteed by the Constitution: the right to life. That right is the pre-condition of every other right.

In Roe v. Wade the unborn fetus was not a party to the action. Procedurally, in order to be a “party” the fetus first would have to be recognized in Texas law as a “person”. Then of course, an adult person would have to be appointed by a court to speak on behalf of the unborn child, and to assert its presumed preference to live rather than be aborted. (EN 26) More problematically, the Texas Court and the Supreme Court would somehow have to expedite their decisions and review to predate the completed gestation of the child, if the mother’s interest in freeing herself of the unwanted child by abortion was to remain relevant. The unborn child in Roe v. Wade was not a party, was unrepresented, was not treated as a “person” under the law, and was without a name. At best, the unborn child in Roe v. Wade was generically identified as a “fetus in utero”. By the time the case was heard before the Supreme Court, the Roe child was dead by abortion. The Justices must have found it very easy to ignore the unborn child’s personal interest in life.

The true holding of Roe v. Wade, the one that was the requisite for its horrific outcome, is that the unborn fetus is not a person under the law. As such, “it” is an object, nothing more than a biological mass coextensive with the “person” of the mother, and subject to disposition by her like any other body part. People may believe that Roe v. Wade restricts abortion at later stages. It does not. The essential holding is that the mother, on advice of her physician, has unlimited rights to destroy her unborn child right up to the time of birth. Yes, some post Roe decisions have held that the States may enact laws that restrict abortion if the law does not place an “undue hardship” on the mother’s right to abort. This “undue hardship” restriction is no restriction at all because the court has defined it to be any psychological burden on the mother, as defined not by the court or the states, but by her physician alone. Therefore, a mother may legally abort her unborn child at 9 months (for example, by partial birth abortion) because she would be depressed at the prospect at delaying her college education, or because of the inconvenience of giving the child up for adoption.

Of the 7 justices in Roe v. Wade voting to grant a federal license to abort, only Justice Harry Blackmun addressed the personhood issue directly in raising the question whether the fetus was entitled to equal protection of the laws. Certainly, this was a relevant question because equality is the characteristic par excellence of democratic freedom. If one is neither human nor a person, then one has no claim to equality with those who are human persons. The issue then is inescapable, although most of the jurists chose to ignore it. (EN 27)

In a major error of logic, Justice Blackmun began his analysis by noting that used the term “person” only to refer to post-natal humans. From this observation, he concluded that the Constitution could be extended to protect pre-natal humans. In effect, Blackmun reasoned that if the Constitution did not identify you explicitly as a person, you were not a “person”. Blackmun seemed to assume that the Constitution was a comprehensive compendium of the English language, a sort of Oxford English Dictionary of the Common Law or Natural Law, rather than a mere sketch of guiding natural law principles. The document does not of course define “person” any more than it undertakes to define the term “People” in the phrase “We the People”. Likewise, the Constitution does not use the term “woman” yet no one would presume to exclude from the class of persons or people the category of persons who are women. For that matter, the Constitution does not reference infants, the infirm, the various races, religious groups, immigrants, or numerous other classes of “persons.”

Nothing in a Constitution can be more important however than the idea of politically recognized “personhood’. Otherwise, the fundamental human right to life is subject to denial by any political subgroup that wants to marginalize or eliminate another subgroup. Hitler’s Nazi party did just this in 1938 when it enacted laws permitting the killing of the deformed or infirm, all in the interest of ridding society of the costs of carrying for these misfits, and in the interests of cleaning the gene pool of their presence. For Hitler, these persons did not bear the image of the Aryan state, and of course, since the state was supreme, they could not bear the image of God.

Blackmun and the Majority in Roe v. Wade were guilty of a more pernicious error of logic as well. Asserting that the concept of “personhood” was philosophically and scientifically in dispute, Blackmun concluded that the existence of that dispute precluded a legal conclusion that a pre-natal human was a “person”. The logic of this approach is that if segments of a democratic society differ on defining “person”, the Court is to conclude that a pre-natal human life is not a “person”. (EN 28) This logic is contrary to the function of the Court to follow Constitutional principles without regard to their popular acceptance. The Court is to address questions of fundamental liberty and equality even when those issues are contentious and lack popular consensus. Secondly, Blackmun’s implicit premise is that the Court either would not or could not weigh the merits of Texas law in view of these contending philosophical, moral, scientific and common law viewpoints. Blackmun was simply wrong as a matter of science that human life did not begin at conception.

He also engaged in a form of sophistry. Stating that the divergence of opinion on “personhood” prevented an understanding of when “person” status is to be conferred, Blackmun concluded inconsistently that a pre-natal life was not human and was not a “person” under the 14th Amendment. That is, having stated there was no standard by which to make the determination, he proceeded to make the determination—against the fetus. (EN 29)
Blackmun in truth relied on an unspoken and perhaps even unconscious philosophical position: radical autonomy. In this philosophical view, the law is determined by the personal values and beliefs of the individual rather than by independent ethical standards. The term often employed in Constitutional decisions to support this philosophical view is “privacy”, or the “right of the individual to be left alone”. In the context of Roe v. Wade, the right is articulated as the right of a woman to be left alone in determining the fate of the human life supported within her womb. There is no explicit “right of privacy” in the Constitution. Justices have implied the right as a transcendent right, needed to support and justify all the other more defined and lesser rights explicitly stated. Of course, we all like the idea of having the “right to be left alone”, and we often exercise that right in our relationships. (EN30) As in many things we humans do in our falling short of perfection, we can appropriate a good and turn it into an evil. Such is the case with this Constitutional “right of privacy”. The “right to be left alone” to take a vulnerable human life because it is on the wrong side of a uterus is a distortion of an otherwise good principle. Rights such as the “right to be left alone” are especially easy to twist to a bad result. A privacy right collides with the reality of our social relationships. Your privacy pushes against my privacy, or more relevant to the abortion issue, your right of privacy may collide with my right to life.

The argument for abortion rights is taken directly from the reasoning of Roe v Wade is that a woman has a qualified right to do with her body as she pleases because such right is found implicitly within the 14th Amendment as a “right of personal privacy”. (EN 31) So, the essence of the Court’s decision rests on the combined biological, legal, and unarticulated philosophical conclusion that the fetus is not a “person”, does not have a “body” of its own, and that its mother “owns” the fetus as her body. Therefore this woman can exercise an unwritten but implied constitutional “right of privacy’ to her own body to remove and kill a part of that body contained and supported by her womb. The logic of the decision is unassailable. By comparison, the legal coherence and ethics of its premises are easily assailed.

First, the court’s unarticulated premise is that the fetus does not have its own body, or, alternatively, if it has a body of its own, the mother owns that body as disposable property. This premise is contradicted conclusively by the genetic biology of the fetus, who exists as a unique combination of chromosomes producing a member of the human species. The DNA imprint of the child will place it conclusively in this category. More importantly, the DNA is active and living. That is, by natural or artificial means, the fetus is alive and developing rapidly according to its DNA blueprint. This internal genetic program is not connected or dependent on the mother’s DNA, and is distinct and separate from her body in the fundamental sense that the child has its own developing body. True, the child is drawing nutrients and homeostatic conditions needed for development from the mother, but in this regard, it is merely acting as a human infant who will continue to be dependent on adults providing stable conditions for its development after birth, through maturation, adulthood, and eventual old age. (EN 32)

Secondly, the Court implicitly defines the fetus as a presumed part of the mother’s body or as her biological property. In reaching this conclusion, the Court in effect reduces fetal human life to the status of legal non-persons. Doing so, the Court avoids the inevitable ethical question: does the mother’s right of privacy conflict with the unborn child’s own basic “right of privacy” to be left alone by a mother who wants to kills it, or more accurately, does the mother’s right of privacy conflict with the fetus’s more fundamental “right to life”? The irony of the Court’s reliance on the 14th Amendment is boldly clear. The People enacted the 14th Amendment to provide equal protection of the laws to all persons. Congress crafted the Amendment to address the inequities of slavery in the aftermath of the Civil War. In Roe v. Wade, the Court used the 14th Amendment to imply a “right of privacy” that included the “right to abort”. In a moral twist of a good law, the Court used the 14th Amendment to render the unborn child the biological slave of its mother, and gave her the right to dispose of it with impunity, even by death.

The Court’s reasoning, when reduced to its core, is nihilistic. That is, consistent with the philosophical view of nihilism, rights are determined by relative balances of power. The fetus is at conception of course most without power, particularly political power. It is in every sense helpless and vulnerable, and without a voice. Classical government comes to the protection of such persons, providing them with the conditions necessary to permit them to have equal access to the good things of life, especially life itself. In Roe v. Wade, the Court not only forgot its essential democratic purpose within the Constitution, it turned it upside down. It used its power to deprive the right of life to millions of persons it defined as non-persons, and it did so to serve the power needs of another class of more vocal (but no more entitled) persons. This other group of persons was adult women led by a “liberationist” vanguard seeking “freedom from oppression” in a male dominated society. This politically powerful group saw pregnancy as an impediment to their liberation, even a male conspiracy to “keep them in their place”. In their frenzy for autonomy, they asserted a “right to privacy” that removed an unwanted pregnancy as one of the tools of their oppressors. Justice Blackmun resolved the power equation in their favor, probably in the belief that he was part of the enlightenment of modern thinking. Yet, ethical standards tend not to be fashionable, but immutable. As it turns out, time is exposing that the Roe v. Wade majority violated fundamental human rights, and Blackmun’s mistake simply refuses to pass into obscurity.

Blackmun and the majority stepped out of their judicial roles into a political and legislative role to vindicate their personal social agenda. With time, Roe v Wade will be reversed because this usurpation of constitutional authority is patent, and because the logic and evidence for “person” status from conception is compelling.

Assume for a moment that a child’s total intrauterine dependence is a “disability” of 9 months gestation. The child’s prognosis is one of “full recovery.” Compare the status of the unborn child to that of a seriously injured adult person requiring hospital care and therapy over the same period of 9 months. Whether the disabled person was conscious or not, whether the person was able to talk, eat, walk, or respond, would all be irrelevant in view of the prognosis for “recovery”. A whole health care system, supported by insurance, exists for the care of these individuals. At the same time, we would not grant a parent’s or spouse’s petition to abort these life-sustaining measures because of the costs or inconvenience that resulted.

The unwritten premise of the Supreme Court in Roe v. Wade is that the fetus’s location and dependence within the womb disqualified it completely from consideration for “personhood” under the Constitution. The Court failed in a basic duty of its office—it failed to apply the laws equally to all, including the voiceless and the defenseless. A more logical approach supported by the scientific evidence would have been to balance the unborn child’s right to life against the “liberty” and “autonomy” interest of the mother. I believe the majority in Roe v. Wade did not want to weigh that evidence or engage in that analysis because the Court had already reached a political decision that abortion was a woman’s right.