I. The Roe Court's Examination of the Term 'Person' was Deficient.

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...