The “Mystery of Life” is Still a Mystery for the Supreme Court

Part I of II

by John D. Shea

“Personhood” and its corresponding rights are among the most controversial and yet seemingly illusive topics in current Supreme Court criticism. The Supreme Court’s definition of “Personhood” is like its definition of pornography – “it’s hard to define, but you know it when you see it.” The Supreme Court has purposely side-stepped defining human personhood in most of its abortion jurisprudence. However, it has shown no such reluctance in granting increasingly significant aspects of legal personhood to corporations, in controversial recent cases such as Citizens United v. Federal Election Commission.

Any reasonable person would assume that the Supreme Court, when it decided that the U.S. Constitution contained a powerful right to abortion-on-demand, dealt carefully and thoroughly with the question of fetal personhood and clearly and unambiguously denied it. And that reasonable person would be completely wrong. Fetal life – and personhood – is very much an open question in Constitutional Law.

This surprising state of affairs is due to the intellectual gymnastics required to justify a “right” to abortion under U.S. law. The Supreme Court focuses almost exclusively on “privacy rights,” to the exclusion of almost any other considerations. Roe v. Wade actually leaves the question of fetal personhood largely unresolved. The court briefly mentions, and then ignores, the argument that the fetus is a human life. “We need not resolve the difficult question of when life begins,” the Court says. Because the scientific and theological community is “unable to arrive at any consensus, it should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.” The court instead proceeds with the “less rigid claim” that “potential life” is deserving of some protection. Technically, the Court’s analysis of whether a fetus has any technical legal personhood is an entirely separate matter. But it is similarly neglected. The Court simply notes that there is no explicit Constitutional text or Supreme Court case law on point and from that assumes that the unborn child is not a legal person (§ IX-A).

This is, of course, an astounding abdication of legal judgment over the most central question of the case. The Court has basically said that “this question is controversial, so we don’t need to answer it.” This head-in-the-sand attitude continues with Planned Parenthood v. Casey. Casey, in revisiting the rationale of Roe, deliberately refuses to answer the question of fetal personhood. The Court instead opines that it is beyond the government’s competency to decide such a fundamental question. “Beliefs about [meaning, the universe, and the mystery of human life] could not define the attributes of personhood were they formed under compulsion of the State.”

Keen-eyed observers will note that this famous “sweet mystery of life” passage seems to conflate “life” with “personhood”, a central point of anti-abortion logic. Indeed, if “life” and “legal personhood” are to be considered equivalent terms, the pro-life position becomes logically unassailable. Further compounding the stupor-inducing impact of that passage, Casey uses the terms “life”, “potential life” and “life or potential life” interchangeably throughout the decision.

This amazing display of judicial restraint on an important question appears to grant to each (born) person a fantastic liberty to act freely upon their conception of any fundamental metaphysical question. But this has not been the case in American law. The denying of  civil rights for racial minorities based on their supposed less-than-human status is harshly (and justly) punished. One can only assume that “meaning and the universe” means only the field of embryology. What, then, are we to make of this as-yet-unresolved, and indisputably important, constitutional question? Three basic approaches have arisen in the past several decades: one, Constitutional Amendments endorsing full fetal personhood; two, an interpretation of the Fourteenth Amendment to include pre-born children as “persons”; and the third, a clever legislative theory from Prof. Robert George.

The central philosophical tenet of the pro-life movement is that the unborn child is a human person with the right to life. This seemingly obvious fact is not actually contradicted by current Supreme Court case law on abortion. The Court prefers to ignore or sidestep the issue and focus on the rights of the pregnant mother instead. This logical sleight-of-hand gives those who recognize the personhood of the unborn an opportunity to speak out in charity and truth.


In Part Two, Mr. Shea will discuss the three most prominent approaches to defining the “personhood” of unborn children, and explores some of the legal and political advantages, challenges, and nuances of each strategy. 

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