IX. Prior to Roe, Supreme Court Jurisprudence Recognized the Equal Protection Rights of Unborn Persons.

The history of the [Fourteenth] [A]mendment proves that the people were told that its purpose was to protect weak and helpless human beings. (337)

--Justice Hugo Black

Equal protection seeks to ensure that persons in similar situations are treated equally under the law. (338) As the Court delineated in Reed v. Reed (339):

The equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." (340) One year before the Supreme Court decided Roe, it took up an equal protection case pertaining to unborn persons. Weber v. Aetna Casualty & Surety Co. was an equal protection case in which the Supreme Court held that illegitimate children could not be excluded from sharing equally with other children in the recovery of workmen's compensation benefits for the death of their father. (341) Justice Powell wrote the opinion for the Court; not wasting any time, he began as follows:

The question before us, on writ of certiorari to the Supreme Court of Louisiana, concerns the right of dependent unacknowledged, illegitimate children to recover under Louisiana workmen's compensation laws benefits for the death of their natural father on an equal footing with his dependent legitimate children. We hold that Louisiana's denial of equal recovery rights to dependent unacknowledged illegitimates violates the Equal Protection Clause of the Fourteenth Amendment. (342) Of great significance, was the fact that there were two unacknowledged illegitimate children of the father and mother, one born and the other unborn at the time of the death of its father-death being the time at which the rights of recovery are vested for surviving dependants. (343) The Supreme Court necessarily held that there was an equal protection duty owed to the unborn illegitimate child also, "We think a posthumously born illegitimate child should be treated the same as a posthumously born legitimate child." (344) Justice Powell reasoned in the opinion that the illegitimate children were as much dependent on their deceased father as the legitimate children and were...