V. The Authorities Cited by the Roe Court Affirm the Property Rights of Unborn Persons.

Let us see what the nonentity can do. He may be vouched in a recovery, though it is for the purpose of making him answer over in value. He may be an executor. He may take under the Statute of Distributions. He may take by devise. He may be entitled under a charge for raising portions. He may have an injunction; and he may have a guardian.... Why should not children en ventre sa mere be considered generally as in existence? They are entitled to all the privileges of other persons. (148)

--Justice Sir Francis Buller

In his Roe opinion, Justice Blackmun disingenuously dismissed the property rights of unborn children as being only contingent in nature and because the "[p]erfection of the interests involved ... has generally been contingent upon live birth [...] the unborn have never been recognized in the law as persons in the whole sense." (149) And, in Casey, Justice Stevens quoted Justice Blackmun without qualification on this important point. (150)

Yet, in Roe, to support this speculation, Justice Blackmun cited three articles in footnote 66: "Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16 UCLA L. Rev. 233, 235-38 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-54 (1971)." A cursory examination of these articles reveals that they not only do not support Blackmun's contention but refute it.

In the UCLA Law Review, David W. Louisell, Elizabeth Josselyn Boalt Professor of Law, University of California, Berkeley, wrote:

The common law's recognition of the unborn child as a human person for property law purposes appears to reflect a basic psychological evaluation that in law, as in ordinary thought, "child" includes the conceived child but as yet born. Apparently the civil law and its terminology reflect the same normative use of language. (151) Justice Blackmun's claim that "Perfection of the interests involved, again, has generally been contingent upon live birth" does not square with Louisell's conclusion that, "[I]n law, as in ordinary thought, 'child' includes the conceived child but as yet born." (152)

Next, consider this paragraph from the cited note appearing in the Iowa Law Review:

It seems clear, therefore, that the law of property has recognized for centuries that the unborn child is a person from the moment of conception. It would appear that the Constitution, which also evidences a considerable interest in protecting property rights, should be interpreted to reflect at least as great a concern for protecting the interest of the unborn child to continued life. Such an interpretation would also appear to bring a certain consistency to the Constitution itself, since to deprive the unborn child of life implicitly sacrifices his rights and interests in property. (153) "[T]he law of property has recognized for centuries that the unborn child is a person from the moment of conception"! (154) Could the jurist's conclusions and the explicit opinions contained in his cited material be more diametrically opposed? Perhaps not, but sadly this is quite typical of the Roe opinion. (155)

And, William J. Maledon, in his article in Notre Dame Lawyer, declared, "It seems clear, therefore, that the law of property recognizes the rights of the unborn child from the moment of conception for all purposes which affect the property rights of that child." (156) Maledon supports this statement with numerous...