VIII. Roe is a Violation of the Fifth Amendment Due Process Rights of Unborn Persons.

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. (316)

--Chief Justice John Marshall

The introductory quote to this section from Chief Justice Marshall in Marbury denotes the fundamental nature of due process in our system of ordered liberty. Likewise, Chief Justice Waite declared in Munn v. State of Illinois, "Rights of property which have been created by the common law cannot be taken away without due process." (317) Yet, there is another aspect to the due process right of the unborn ignored by the Roe v. Wade opinion, one of procedure. An Illinois case, Doe v. Scott, (318) in which a guardian ad litem had been appointed to represent the legal rights of the unborn, was appealed to the Supreme Court, about the same time as the other Roe cases. The guardian ad litem submitted a motion to the Supreme Court to consolidate his oral arguments with the Roe arguments. The Court denied the motion of the guardian ad litem. (319)

Yet, there is hardly a more fundamental aspect of due process than the right to be heard in court. (320) All persons, at the very least, must be afforded the protections of due process before those rights are taken away. For example, three years before Roe, in Goldberg v. Kelly, (321) the Court held that recipients of government welfare benefits must be given a hearing before a benefit is terminated. (322)

Likewise, unborn persons are under the same legal disability as infants and as such, the courts need to appoint a guardian ad litem when litigating their rights, as the Court admitted in both Roe and Casey. (323) Yet, both Justices Blackmun and Stevens overlooked the fact that the Court had previously held not only that there must be a guardian ad litem appointed, but that the infant must be personally within the jurisdiction of the court, or the appointment of the guardian ad litem will not avail the court. Under such circumstances, any judgment pretending to decide their rights is void--coram non judice. (324) The Court upheld the due process right of infants not to be bound to decrees in foreign jurisdictions in Insurance Co. v. Bangs, a case involving the rights of an infant under a personal contract:

That suit did not concern any property, real or personal. It was brought to cancel a contract made with his father, and any decree respecting it would necessarily have been coram non judice, unless the parties...