Unborn children as constitutional persons.

• Author: Roden, Gregory J.

An honest judge on the bench would call things by their proper names. (1)

--AMA Committee on Criminal Abortion (1871)

ABSTRACT: In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." (2) To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." (3) However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." (4)

In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and the jurisprudence of [the Supreme] Court." (5)

Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, (6) tort, (7) and property law, (8) the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. (9) Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.

Gregory J. Roden, J.D., Attorney, Eden Prairie, Minnesota. B.B.A., with honors, 1979, University of Wisconsin-Madison; J.D., 1991, South Texas College of Law. Member of the United States Supreme Court Bar and Minnesota State Bar. Correspondence may be sent to greg.roden@comcast.net. I would like to express my gratitude to God for this opportunity to labor in His vineyard. I also thank my wife, Claire H. Roden, for her support throughout this project and for her editorial advice. I also extend a special recognition to Arlene Sieve for her expert proofreading; any perceived remaining errors may be attributed to the author.

The words "any person or persons" are broad enough to comprehend every human being. (10)

--Chief Justice John Marshall

In Roe v. Wade, Justice Harry Blackmun made the claim "that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment." (11) Justice Blackmun did so by recounting that the Assistant Attorney General of Texas, Robert C. Flowers, (12) could not cite a single case holding "that a fetus is a person within the meaning of the Fourteenth Amendment." (13) Yet, the fact that Mr. Flowers could not cite such a case does not necessarily mean there were none. The question then becomes, are there any?

In the first volume of the United States Supreme Court opinions, on page four, is found the case of Lessee of Ashton v. Ashton. In Ashton, the Supreme Court of Pennsylvania upheld the property rights of a posthumous child in a one-page opinion. (14) In Ashton, an interest in land had been left by a will to "the first Heir Male of I.S. when he shall arrive to the Age of 21 Years." (15) As the "Son of I. S." had not been born at the time the will was probated, the devise was contested.

With both parties to the suit agreeing that there was no present devise in this situation, again the "Son of I. S." not having yet been born, this case fell under the Rule Against Perpetuities. The Rule Against Perpetuities holds that interests in property must vest "within a life or lives in being (treating a child in its mother's womb as in being) and 21 years afterwards." (16) Accordingly, the defendant made a good argument under the rule--the first male heir of I. S. could have been any number of generations removed, "I. S. might have had no Son but a Daughter, who might have had a Daughter, who might have had a Son." (17) But instead, the court was persuaded by the plaintiff testator's intent argument that "the Testator by the Words first Heir Male, must have meant first Son," (18) and found for the plaintiff.

In Lessee Ashton v. Ashton there is a right in property, enforceable by a court of law, passing from the Devisor to the "Son of I. S.," unborn at the time of the Devisor's death. Correspondingly, this property right creates the legal duty of other parties desiring an interest in the property to respect it and comply with it. And, if they do not comply with their duty afforded the right, then the court may enforce this right of the posthumous child, and compel the defendant to dutifully comply.

Cases such as Ashton illustrate the very essence of the legal use of the word "person"--a human being who has rights that are enforceable in a court of law. (19) Rather than the theological, philosophical or medical approaches to personhood Justice Stewart urged in Roe's oral reargument, (20) and Justice Blackmun largely adopted in Roe, (21) the Court (22) should have thoroughly examined the term "person" as a legal term (23); especially since the Court is a court of law, not one of theology, philosophy or medicine.

Although Justice Blackmun did not ignore the legal aspect of the term "person," but to the extent he did investigate, it was deficient. Justice Blackmun observed: "The Constitution does not define 'person' in so many words." (14) And, after a superficial examination of the use of the word in the Constitution, Justice Blackmun surmised, "But 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." (25)

Borrowing an argument from Cyril C. Means, Jr. (NARAL's General Counsel at the time Roe was decided), (26) Justice Blackmun pointed to the Apportionment Clause as a specific example in which unborn are excluded from a Constitutional provision. He noted, "We are not aware that in the taking of any census under this clause, a fetus has ever been counted." (27) Yet, this textual inquiry does not hold water when examined against the overall "structure of the Constitution." (28) It may be observed that "Indians not taxed," are constitutionally prohibited as being counted as persons under the Apportionment Clause of the Constitution (29) and the Fourteenth Amendment (30) itself. (31) Yet, "Indians not taxed" are, of course, considered persons under the Fourteenth Amendment. (32) This is because the protections of the Fourteenth Amendment are afforded to all persons "within the territorial jurisdiction" (33) of a state regardless of whether they are citizens, aliens, or Indians "not taxed."

Persons within the territory of the United States, but not within the "several states" are similarly treated: "The populations of the District of Columbia, Puerto Rico and the U.S. Island Areas are excluded from the apportionment population because they do not have voting seats in the U.S. House of Representatives." (34) Surely, no one is going to argue that the residents of the District of Columbia, Puerto Rico, and the U.S. Island Areas are not persons because they are excluded from the apportionment count? (35)

Yet, Justice Blackmun's limited examination of the Constitution did not consider the Preamble, which clearly states the purpose of the Constitution is also to protect the interests of those who are not yet born:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (36) Still, the substantive rights of national citizenship are rather limited. The Court listed some of these rights in Twining v. State of New Jersey:

Privileges and immunities of citizens of the United States, on the other hand, are only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States. Thus, among the rights and privileges of national citizenship recognized by this court are the right to pass freely from state to state; the right to petition Congress for a redress of grievances; the right to vote for national officers; the right to enter the public lands; the right to be protected against violence while in the lawful custody of a United States marshal; and the right to inform the United States authorities of violation of its laws. (37) As none of these rights ordinarily pertain to the circumstances of unborn children, it is not reasonable to expect any federal case law holding unborn children to possess these national rights and privileges.

The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Sovereignty, for this purpose, rests alone with the States. (38)

--Chief Justice Morrison Waite

The Fourteenth Amendment...