The law and philosophy of personhood: where should South Dakota abortion law go from here?

• Author: Pons, Brendan F.

The philosophical concept of personhood is underappreciated in political and legal discourse. However, the manner in which individuals view personhood affects not only human interaction with the world but also who receives legal rights and protections. In particular, the concept of personhood significantly impacts the issue of abortion, namely, embryos and non-viable fetuses must be defined as non-persons in order for abortion to be legal. According to Roe v. Wade, a seminal case in United States' abortion jurisprudence, an embryo or fetus is not a constitutional person in the context of the Fourteenth Amendment. However, while courts and scholars continually wrestle with determining the boundaries of constitutional personhood, recent South Dakota legislation has been geared toward changing abortion law. In light of its importance to current legal issues, legal scholars and practitioners should critically and carefully examine the concept of personhood in the context of the abortion debate. The question of embryonic and fetal personhood is central to philosophy, morality, as well as the United States Constitution and must be extensively considered and explored by legal practitioners, legal scholars, and courts.

1. INTRODUCTION

   The concept of personhood's impact on abortion law was highlighted in Roe v. Wade (1) when the United States Supreme Court noted, "[i]f this suggestion of personhood is established, the ... case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." (2) Regardless, the Supreme Court has abstained from positing a legal theory or criterion for personhood, as Justice Blackmun asserted:

   We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. (3) At the time of the Roe decision, the Supreme Court focused on theological writings, common law, and medicine, while ignoring philosophical and bioethical literature. (4) This approach of bracketing personhood, (5) however, is unsustainable; legal policy analysis needs to examine carefully opposing worldviews in order to prevent undesirable consequences due to unjustified dogmatism. (6) More in-depth public discourse concerning abortion, life, and personhood is necessary because current public discussion has failed to address the importance of personhood in the abortion debate. (7)

   At first blush, exploration of the concept of personhood seems to be a purely intellectual endeavor; however, it has increasingly become a heated topic of political debate. (8) Although personhood is an important philosophical notion, it is also legally significant because it is useful in determining people's protected rights under certain laws. (9) Though fetal personhood is not the sole legal factor in determining abortion's legality, (10) it is important because the question of when life begins determines basic constitutional guarantees. (11) Therefore, applying personhood to the law is a basic constitutional question; whether prenatal humans qualify as constitutional persons is determinative of any constitutional protections they may have, including the rights to life, liberty, and property, and whether they should have equal protection under the laws of the United States. (12)

   Though pivotal to jurisprudence, the body of personhood law is fragmented, (13) contradictory, (14) as well as "fraught with deep ambiguity and significant tension...." (15) While abortion and personhood are moral questions commonly left for individual judgment and belief, clear public dialogue is necessary due to its widespread legal ramifications. (16) Because courts have addressed personhood by looking at the consequences on a case-by-case basis, no coherent legal doctrine or criteria addresses present problems or provides guidance for future issues of personhood as technology develops. (17) Regardless of what worldview one has about personhood and abortion, the legal and ethical implications demand "a coherent account of the constitutional personhood of unborn humans from the Court because so very much turns on it." (18)

   Developing an account of personhood--or even more specifically, constitutional personhood--is difficult (19) because the legal ramifications of constitutional personhood apply not only to abortion, but also extend to a multitude of issues, such as embryonic stem cell research, cloning, and in vitro fertilized embryos. (20) The rhetoric used to address the issue also complicates the discussion; words such as "life," "human being," and "person" are loaded terms and are used ambiguously as well as interchangeably. (21) In addition, the general public, lawmakers, legal scholars, and philosophers have fallen victim to the circularity of language that plagues the abortion debate. (22) Although some scholars have attempted to develop doctrines for addressing constitutional personhood (23) and others have applied personhood to unique situations, (24) no scholar has been able to articulate an all-encompassing legal and philosophical account of personhood, in addition to subsequently applying such a doctrine to show if abortion law should indeed be reformed. (25)

   To address these issues, this comment will first survey the history of personhood as it occurs in criminal and tort law, demonstrating extreme changes that have resulted in the fragmentary nature of the concept. (26) This comment will then explore personhood's development in abortion law, specifically showing the varying criminal aspects of abortion and the evolution of personhood theories and positions. (27) This comment will next review the impact of the canonical case of Roe, specifically examining the establishment, development, and critiques to the viability standard. (28) This comment will then provide a detailed look into South Dakota's abortion law history, including two attempts to ban a majority of all abortions as well as severe restrictions put in place to curb the number of abortions performed in South Dakota. (29)

   This comment will then provide a survey of the philosophy of personhood to situate the law of abortion within the literature and to foster well-informed and well-grounded conceptual frameworks for legal practitioners and legal scholars. (30) To that end, this comment will detail the legal theories of constitutional personhood, including natural and juridical/artificial persons, and the three legal theories of corporate personhood. (31) This comment will also provide an overview of the main philosophical schools of thought with regard to personhood, and evaluate the philosophy and impact of potential personhood as an alternative to requiring strict personhood. (33) Finally, this article will apply both legal and philosophical personhood theories to clarify the legal status of the unborn and outline measures that states, including South Dakota, may take to modify how personhood is viewed in abortion law. (34)

2. BACKGROUND

   1. THE LAW OF PERSONHOOD AND ABORTION

      1. Personhood in Criminal and Civil Law

         The law on fetal personhood, apart from its application in abortion, is fragmented and inconsistent. (35) Generally, legal personhood has been understood as described by scholar John Chipman Grey as, "often ... meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." (36) English common law maintained two opposing views about fetal personhood. (37) First, Lord Hale posited that criminal homicide did not apply to prenatal injuries inflicted to the fetus which resulted in its death before or after birth. (38) The other position on criminal homicide for injuries inflicted upon a fetus was that a crime occurred if the fetus died after it was "born alive." (39) According to this view, if the fetus died before being born, then no crime would have been committed; on the other hand, if the child was born alive for any amount of time and died afterward, then the crime of murder would have been committed for injuries sustained in the womb. (40)

         Civil and criminal jurisprudence have both struggled with fetal personhood as well as when rights should be applied to and acquired by the unborn. (41) In the United States, several courts have applied the "born alive" rule for the death of the child resulting from injuries inflicted before birth, (42) regardless of whether the fetus was viable at the time of death. (43) Other courts have rejected the "born alive" rule and have held that viability can be either instrumental (44) or irrelevant in determining legal protection as long as the fetus was beyond its embryonic state. (45)

         The doctrine that prenatal injuries could not sustain a cause of action in tort either by the injured child or a personal representative, as established in Dietrich v. Inhabitants of Northampton, persisted until 1946. (47) Dietrich court held that the unborn child cannot be "regarded as a separate, distinct, and individual entity" from its mother. Tort law then adopted a rule consistent to the "born alive" criminal law rule in Bonbrest v. Kotz. (49) Noting that civil and property law consider an unborn child a human being at the moment of conception, the Bonbrest court ruled that a child who has the "capacity to survive by surviving" (50) should have standing to maintain an action and recover for its loss. (51) Other courts have disregarded viability and adopted a "born alive" test when a non-viable fetus was born, then subsequently died. Another approach is to allow recovery even if the injury occurs before viability, if the result from the injury negatively affects the fetus once it becomes viable. (52) The trend in recognizing personhood is growing beyond viability and being born alive; this is illustrated by the Missouri Supreme...