Tackling the “Mystery of Life”

John D. Shea

Part II of II

In Part I, Mr. Shea explained that the Supreme Court Jurisprudence avoids the question of fetal person. In Part II, Mr. Shea discusses three of the most prominent strategies aimed at exploiting this gaping hole in the Court’s abortion jurisprudence. 

It may come as a surprise to many that the Supreme Court, in establishing a Constitutional right to abortion, did not in fact carefully consider the biological life or legal personhood of unborn children. A careful reading of abortion jurisprudence reveals that, through an impressive display of creative arguments, the Court in some places ignores, in some places glosses over, and in some places simply refuses to answer the question.

This admission of the weakest link of the pro-abortion argument has been seized upon by the pro-life community, who have launched several different strategies for asserting the legal personhood and rights of unborn children. Constitutional Amendments at the state and federal level, “originalist” interpretations of the Constitution itself, and federal legislative approaches all present different opportunities and disadvantages to the pro-life cause.

Constitutional Amendments defining pre-born children as full “persons” under the law are the most recently fashionable approach to attacking the open question of fetal personhood. Several states, including Mississippi, Florida, and Ohio, have seen efforts to pass such a Constitutional Amendment at the state level, and groundwork is being laid for efforts to pass such a Federal Amendment. The problem with such state-level amendments, of course, is that Roe et al explicitly bars such state action: “we [the Court] do not agree that, by adopting one theory of life, [any state] may override the rights of the pregnant woman [to an abortion].” Thus, any state constitutional amendment granting pre-born children full personhood is unlikely to achieve much more than a pretext for a Supreme Court challenge to Roe and its progeny. This is itself a noble goal, if the circumstances are right, but hardly a clear formula for legal recognition of fetal personhood. A Federal Constitutional amendment would avoid such issues, but is impossible in the current political climate – though public opinion continues to gradually shift to pro-life.

Scholars have also argued that a natural historical reading of the Fourteenth Amendment, particularly the Equal Protection clause, lead to the conclusion that fetal personhood is guaranteed and protected by the Constitution. The Constitution, as Roe points out, does not define “person.” The main difficulty with this approach is that the Founders did not have the benefit of the modern science of embryology. The state of medicine in the Founders’ day centered on such now-discredited theories as “quickening”. It is difficult to predict what their reaction would be to modern science. Furthermore, as Roe notes, though abortion has consistently been a crime for most of modern Western history, there have been varying levels of criminality attached to it and certainly not a wide consensus that it is always a capital offense (as murder universally was). Even prominent conservative Constitutional scholars such as Antonin Scalia note that the constitutional text does not explicitly preclude states from permitting abortion. The fact that even the most staunchly anti-Roe voices on the bench would not adopt such a theory based on the constitutional text calls its chances of success into considerable doubt.

A third and more narrowly-tailored theory arose recently at the Palmetto Freedom Forum in September of last year. Princeton professor Robert P. George asked the Republican candidates for President whether they would support Congressional legislation defining pre-born children as persons under the Fourteenth Amendment. This theory takes advantage of the fact that none of the current abortion jurisprudence explicitly denies the personhood of the unborn, and seizes upon the well-accepted mechanism of Congressional civil rights legislation to fill that gap. As Prof. Michael New notes, such legislation was indeed proposed in the early 1980s but failed to get any traction amid internal disputes in the pro-life movement. This theory has its own issues. It is as likely to lead to a constitutional challenge as any Personhood Amendment, and is politically almost as difficult. However, it has the considerable advantages of not technically running afoul of any of the current Constitutional jurisprudence and not requiring an overwhelming consensus of public opinion to achieve.

For decades, members of the academic community have questioned the logic of applying the legal fiction of “personhood” to business entities while denying any such recognition to pre-born human beings.  The Supreme Court, in order to justify a Constitutional mandate of abortion-on-demand while maintaining some semblance of intellectual consistency, has chosen to obfuscate and avoid the question of pre-born life and personhood and focus elsewhere – hoping, perhaps, that such a mental shell-game would distract from the established science of embryology. Though none of the current approaches to establishing fetal personhood are without their risks, difficulties, and drawbacks, they speak a powerful truth. In the words of Shakespeare’s Shylock: “If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us – do we not die?”

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