X. Unborn Children Are Persons Within the Jurisdiction of the States Under the Fourteenth Amendment.

To permit a State to employ the phrase "within its jurisdiction" in order to identify subclasses of persons whom it would define as beyond its jurisdiction, thereby relieving itself of the obligation to assure that its laws are designed and applied equally to those persons, would undermine the principal purpose for which the Equal Protection Clause was incorporated in the Fourteenth Amendment. (361)

--Justice William Brennan

The Due Process and Equal Protection clauses of the Fourteenth Amendment read, "IN]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (362) There is an important distinction between these two clauses concerning the phrase "within its jurisdiction." Justice Harlan explored this distinction in Blake v. McClung:

Observe that the prohibition against the deprivation of property without due process of law is not qualified by the words "within its jurisdiction," while those words are found in the succeeding clause relating to the equal protection of the laws. The court cannot assume that those words were inserted without any object, nor is it at liberty to eliminate them from the constitution, and to interpret the clause in question as if they were not to be found in that instrument. (363) The Court held that one of the other plaintiffs in error along with Blake, namely Hull Coal & Coke Company (a corporation), was never within the jurisdiction of the state of Tennessee. And, never being within the jurisdiction of the state, Hull Coal & Coke could not invoke the Equal Protection Clause of the Fourteenth Amendment:

Without attempting to state what is the full import of the words, "within its jurisdiction," it is safe to say that a corporation not created by Tennessee, nor doing business there under conditions that subjected it to process issuing from the courts of Tennessee at the instance of suitors, is not, under the above clause of the fourteenth amendment, within the jurisdiction of that state. (364) Two years later, the case was back before the Supreme Court again, this time on a writ of error brought on a motion by Blake in the Tennessee Supreme Court for a decree in conformity with the first U.S. Supreme Court opinion. In that second Blake v. McClung case, Justice Harlan reiterated his finding that as jurisdiction over the company was lacking in Tennessee, the Equal Protection Clause was not applicable:

In relation to the Hull Coal & Coke Company this court held that ... although a "person" within the meaning of the Fourteenth Amendment, ... not being within the jurisdiction of Tennessee it could not invoke the protection of the clause forbidding the denial by a state of the equal protection of the laws to persons within its jurisdiction. (365) Justice Harlan's opinion is in line with the Court's similar holding some twenty years before in Pennoyer v. Neff regarding in personam jurisdiction. Pennoyer is a confirmation of the legal definition of person because in personam jurisdiction has as its object "to determine the personal rights and obligations of the defendants." (366) Although...