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Unborn Children as Constitutional Persons
Abstract
In Roe v. Wade, the state of Texas argued that "the fetus is a 'person' within the language and meaning of the Fourteenth Amendment." To which Justice Harry Blackmun responded, "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." However, Justice Blackmun then came to the conclusion "that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." In this article, it is argued that unborn children are indeed "persons" within the language and meaning of the Fourteenth and Fifth Amendments. As there is no constitutional text explicitly holding unborn children to be, or not to be, "persons," this argument will be based on the "historical understanding and practice, the structure of the Constitution, and thejurisprudence of [the Supreme] Court." Specifically, it is argued that the Constitution does not confer upon the federal government a specifically enumerated power to grant or deny "personhood" under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as the holders of rights and duties has been historically exercised by the states. The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.
... Roe v. Wade and other Supreme Court opinions implicitly recognize this as a function of state sovereignty. [17] In Roe v. Wade, the state of Texas argued that a fetus is a person who has a legal right to life within the language and meaning of the Fourteenth Amendment. [15] In the case of a mother who is brain dead, the death certificate will state that the time of death occurs at the time brain death was diagnosed. ...
... Forty-three cases of somatic support were reported from 1976 to 2015. [1][2][3][4][5][6][8][9][10][11][12][13][14][15][16][17][18][19][20][21][22] Thirty-two viable fetuses were delivered and survived the neonatal period. Three were not delivered; one mother was removed from support due to abnormal fetal growth; one mother was removed from support by a court order, leading to fetal demise; and one family made the decision to remove the mother from support, leading to fetal demise. ...
Brain death implies irreversible cessation of the brainstem function. While it is generally considered unethical and futile to continue to support vital organs once a diagnosis of brain death has been made, patients who are both pregnant and brain dead complicate this issue because the appropriateness of continuing maternal somatic support to prolong gestation to delivery is still debated. This article will review the literature, and open up dialogue, about the need for guidelines and recommendations in anesthesia care, including the ethics, legality, and cost of supporting the mother’s life to save an unborn child, when somatically supporting pregnant patients who are brain dead, are in a persistent vegetative state (PVS), or are in a coma due to irreversible brain injury. Making a case for or against supporting such patients is outside the scope of this paper. This review finds that the need for guidelines to assist healthcare professionals in providing care to somatically supported mother is necessary.
Since 1973 the legislated constitutional right to abortion has produced a political dichotomy (anti-abortion versus pro-abortion) within the United States, even while witnessing a gradual decline in the rate of abortions. A third paradigm, moral stewardship, is advanced as an effective means to ameliorate this social divisiveness. Incorporating the concept of stewardship into deliberations of pregnancy termination would require recognition, through fact-based education programs, of the life circumstances that prompt the consideration to terminate a pregnancy. Based on collective responsibility, policies, and programs are needed to foster social justice for parents and for the offspring brought to term, without creating excessive burdens on women faced with an unwanted pregnancy. Moral stewardship is perceived as humanitarian to family and community and advantageous to society overall. It also offers a serious opportunity to reshape our society from divisiveness to inclusiveness, and to guide science policy judgment that enhances and strengthens social justice.
Lay summary: Differing opinions over the ethics of human abortion have been legion since Roe v. Wade (1973). The disputes between pro- and anti-abortion factions have segregated society with few improvements in social justice. This study offers an alternative approach, one capable of social assimilation and justice for unwanted offspring and pregnant mothers bearing them. It promotes moral stewardship toward the unborn whose humanity and personhood are recognized genetically and supported philosophically by long-standing ethical principles. Stewardship incorporates all people at all levels of society based on collective responsibility, supported by government policies, yet not restricting a mother's choices for the future of her unborn offspring.
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