In 1992, Ronald Dworkin made a provocative argument that states cannot be given the liberty to declare fetuses to be persons. (1) The argument can be represented as follows: Federal constitutional law recognizes a fundamental liberty interest in controlling "whether to bear or beget a child." (2) This liberty interest in choosing whether to bear a child implies that women have a legal right to choose whether to have an abortion unless the state has a compelling interest to the contrary. States have a compelling interest to the contrary if and only if either unborn humans are persons under the federal Constitution, or states can declare them to be, in effect, persons with rights under state law. Unborn humans are not persons under the federal Constitution. Moreover, if states had the power to declare unborn humans to be, in effect, persons in whose welfare they could take a compelling interest, they would thereby have the power to undermine federally protected constitutional rights. Such a power would be inconsistent with the supremacy of federal law. As Dworkin put it: "If a fetus is not part of the constitutional population, under the national constitutional arrangement, then states have no power to overrule that national arrangement by themselves declaring that fetuses have rights competitive with the constitutional rights of pregnant women." (3)
This argument is no mere academic exercise. It was quoted at some length, that same year, by Justice Stevens in his concurring opinion in Planned Parenthood v. Casey. (4) Justice Stevens quoted the argument in a note following his assertion that "as a matter of federal constitutional law, a developing organism that is not yet a 'person' does not have what is sometimes described as a 'right to life.'" (5) Given that Dworkin's argument does not support, but rather rests on, Justice Stevens's claim about federal constitutional law, Justice Stevens presumably offered it not as support for his claim about federal law, but as a warning to those who would suggest that states could unilaterally choose to declare unborn humans to be persons. Justice Stevens presumably meant to endorse the thought that states cannot "increase the constitutional population by unilateral decision [and thereby] decrease rights the national Constitution grants to others." (6)
Although it has been fourteen years since Dworkin published this argument and Justice Stevens cited it, no one has yet subjected the argument to detailed critical analysis. (7) The argument, however, should not be ignored. It may well come back into play as states, as well as the federal government, are passing laws that recognize unborn humans as persons for purposes other than restricting abortions. On April 1, 2004, President Bush signed into federal law the "Unborn Victims of Violence Act of 2004," making the killing of an unborn person (other than as part of an abortion sought by a woman) a crime punishable as if a born person had been killed (with the exception that the death penalty is not available). (8) A number of states have recently pursued basically the same legal strategy. For example, Texas's "Prenatal Protection Act," extends the protections of the entire criminal code to "an unborn child at every stage of gestation from fertilization until birth." (9) Utah's criminal law, with an exception carved out for abortion, treats the killing of an "unborn child" at any stage of pre-natal development like any other homicide. (10) In addition, with exceptions carved out for abortions, 18 other states have laws that criminalize killing unborn humans from conception onwards, and seven other states have laws that criminalize killing unborn humans starting some time after conception but before viability. (11) Some states are even contemplating laws that directly challenge, for all purposes, the claim in Roe that unborn humans deserve fewer basic protections than born humans. For example, South Carolina's legislature is considering, at the time of this writing, a bill entitled the "Right to Life Act of South Carolina." According to this bill, "The right to due process, whereby no person may be deprived of life, liberty, or property without due process of law, and the right to equal protection of the laws, both of which rights are guaranteed by ... the Constitution of this State, vest at fertilization." (12)
Laws of this sort could become the predicate for states and the federal government to challenge the claim in Roe v. Wade that "the unborn have never been recognized in the law as persons in the whole sense." (13) Dworkin's argument, if sound, would deny states, as well as the federal government, the power to pursue this avenue for challenging Roe. My claim here is that Dworkin's argument does not actually help defend Roe. Rather, it presupposes what it purports to support--namely, that states, and the federal government, are constitutionally barred from recognizing unborn humans as persons with rights. As a result, it begs the question. As a further result, the substantive holding of Roe--that women have a fundamental right to choose an abortion--is in greater jeopardy than is generally acknowledged.
ROE AND THE STATUS OF UNBORN HUMAN LIFE
To appreciate how changes in state and federal law, providing greater protection to the unborn, could undermine the substantive holding of Roe, it is necessary to revisit the argument in Roe. Roe, at its core, is based on two premises. The first is that women have a fundamental liberty interest in controlling whether to beget and bear children; the second is that states do not have a compelling interest sufficient to override the woman's liberty interest. Many critics, including the two original dissenters in Roe, Justices Rehnquist and White, have assailed Roe's first premise. But I believe Dworkin is right. Roe's first premise is solidly grounded in a wide range of uncontroversial Supreme Court opinions. (14) As a matter of constitutional law, Roe's second premise is more controversial.
The second premise, that states do not have a compelling interest sufficient to override a woman's liberty interest, turns on two further claims: first, that unborn humans are not persons under constitutional law, and second, that states do not have a compelling interest in protecting unborn human life, at least not until it reaches the stage of viability. The first claim seems sufficiently well supported by three kinds of reasons relied on in Roe itself. First, insofar as the text of the Constitution offers any evidence of what counts as a person, it treats them as "born" persons, and no case has ever treated an unborn human as a person under the Fourteenth Amendment. (15) The Fourteenth Amendment starts: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (16) The implication is that there are two routes to citizenship: birth and naturalization. It might be suggested that citizenship depends on birth, but that personhood status does not. Were that true, the Privileges and Immunities clause, which protects citizens of the United states, would protect only those who are born, while the Due Process and Equal Protection clauses, which protect persons generally, would apply even to the unborn. (17) This, however, is clearly an implausible reading. There is no reason to distinguish these clauses in terms of the born and the unborn. The difference between these clauses is much more plausibly interpreted by reading the Due Process and Equal Protection clauses as providing an extra level of protection to citizens, who form a subset of persons, that is, born humans.
A second reason to think the unborn are not persons under the Constitution is that, from the drafting of the Constitution to the adoption of the Fourteenth Amendment, abortion was tolerated to a degree inconsistent with the belief that constitutional protections were afforded to the unborn. (18) Arguably, under a framework different from that articulated in Roe, abortion can be justified in a fairly wide range of cases, even if the unborn humans who are killed have the legal status of born persons. (19) If that is correct, then it cannot be argued that abortion was tolerated to a degree actually inconsistent with the unborn having the status of persons. But it would still make sense to say that, since most people would have (wrongly) thought abortion should be unavailable if the unborn were persons, the fact that abortion was generally available indicates the people did not conceive of the unborn as persons.
A third reason to think the unborn are not persons under the Constitution is that the rights of unborn humans under the law in general at the time of Roe was inconsistent with their having the status of persons under the Constitution. Even Texas, the state whose law was directly challenged in Roe, did not treat the killing of unborn humans as on a par with the killing of born persons. As the Roe Court noted, it is difficult to reconcile the claim that unborn humans are persons under the Fourteenth Amendment with the fact that Texas, along with most other states, allowed abortions to save the life of the mother. "[I]f the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment s command.?" (20) This point may be less telling than the Court thought. Arguably, in the battle between two innocents, only one of whom can survive, the state could choose to side with the mother. But the Court followed up with a more persuasive point. It noted that "in Texas the woman is not a principal or an accomplice with respect to an abortion upon her." (21) In cases where her life is not at risk, if she is not thought to have a right to an abortion, and if the fetus is a person...