Op-Ed: Surprise! Same Principle That Denies Babies Personhood Was Also Used To Deny Women Personhood


The Supreme Court’s new term begins Oct. 5. The justices now in recess need to do some very serious thinking about cleaning up the mess that’s been made of abortion jurisprudence over the last fifty years.

The politicization of the court has led to the toleration of a judicial error that remains egregious.

It’s time to confront Roe v. Wade’s infamous legacy — the “lawful” prenatal killing of more than 61 million American children. Not one of these lives was protected by due process, a most fundamental legal precedent that goes back to the Magna Carta in 1215.

The Founders reaffirmed the Magna Carta principle in the U.S. Constitution’s Fifth Amendment, ratified in 1791, as a founding principle of the republic:

“No person shall … be deprived of life … without due process of law.”

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The innocent are to be protected from arbitrary execution. The Constitution affirms that all are created equal. Each of us comes into being in our mothers’ wombs, and under the rule of law, each one of us has an “unalienable” right to go on being, to go on living.

Creating an Ambiguity in the 14th Amendment That Was Never There

So on what grounds in 1973’s Roe v. Wade did Justice HarryBlackmun initiate a denial of due-process protection to human beings targeted for abortion? On what grounds was the original inclusive constitutional meaning of “persons” rejected?

It seems to have been based on the feeble grounds that in oral argument — on the spur of the moment, that is — “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.”

Do you think Roe v. Wade will eventually be overturned?

This was not, of course, the first time in Anglo-American legal history that the rights of a whole category of human beings had been denied on the discriminatory grounds that the term “person” did not include them.

In the United Kingdom, for instance, in Nairn v. University of St Andrews (1909), the House of Lords questioned if the word “person” is “wide enough to comprise women.”

They decided, just as Blackmun was to do in Roe over six decades later, that the case turned mainly on the meaning of the word “person.”

It is, they said, “an ambiguous term, and it must be examined and construed in the light of surrounding circumstances and constitutional principle and practice.”

They concluded pontifically that, in the absence of “plain language and express statement,” there could be no doubt when examined that “person” means [only] “male person” in the law in question.

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Similarly, in 1973, Blackmun read down the term “person” in the Fourteenth Amendment. He narrowed the meaning of “person” to exclude any human being who had not achieved “viability.”

Semantically Dexterous Antics To Narrow the Meaning of “Person”

Blackmun, on concluding his Supreme Court career, reminisced about his uncertainties when he first started there.

He was struck by the ingenuity with which Solicitor General Erwin Griswold argued in the Pentagon Papers case that the words “Congress shall make no law” mean “Congress may make some law.”

“I wondered what I had gotten into down here when words that seemed so plain were interpreted with the opposite meaning.”

And yet ironically, in Roe, Blackmun himself, a remarkably quick learner apparently, went on to perform the same kind of semantically dexterous antics in regard to the Fifth Amendment.

The words “Nor shall any person … be deprived of life … without due process of law,” words that seemed so plain, were interpreted with the opposite meaning: Someone can be deprived of life without due process if we decide arbitrarily that a particular someone (e.g., an unborn child) is not “a person in the whole sense.”

Fifth Amendment Principle “Borrowed from Magna Charta”

This Fifth Amendment prohibition surely warranted a more careful examination than Justice Blackmun accorded it in Roe.

Justice Benjamin Curtis, in his famous dissent from Dred Scott (1857), appealed to the Fifth Amendment’s due process clause:

“It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter.”

Adapting Curtis’ argument, we can say that the requirement that no person be deprived of life without due process of law had existed in all the states when laws protecting “the infant in the mother’s womb” were in place.

Accordingly, Justice William Rehnquist in his dissent from Roe was able to list 36 abortion-limiting laws enacted by state or territorial legislatures prior to the adoption of the Fourteenth Amendment in 1868.

Shameful Regression to Pre-Magna Carta Autocracy

Regrettably, an aberrant pro-abortion ideology, emerging just fifty years ago, has engineered an indefensible reversion to pre-Magna Carta autocracy where a single person (the king) was permitted to exercise the sole power to decide who was to be allowed to live and who was to die. “The King wills and commands…”

Centuries later, the U.S. legal system has reneged on the Magna Carta principle that applies common law protections to the innocent “per legem terræ,” i.e., according to “the law of the land” — and not at the mere will of a single person wielding despotic power.

U.S. law has reverted to an unjust investiture in a single person of the power to order a death sentence to be lawfully imposed on a child in that person’s care.

It is “the pregnant woman” now who wills and commands the death of an innocent human being. It is the pregnant woman who has been awarded sole legislative, judicial and executive power to order the killing of “her unborn child.”

The pregnant woman wills and commands that the “child, who is in utero” be executed.

To Kill an Unborn Child Requires Only “The Consent of the Pregnant Woman”

There can be no place in a genuine rule of law for such a radical despotism that vests absolute power in a single person, “the pregnant woman”— absolute power over the life and death of her “child, who is in utero.”

If the authority to have “her unborn child” killed is vested solely in the child’s mother, then the mother’s power is absolute.

Contrary to the Constitution’s promise, members of “our Posterity” are secured no “Blessings of Liberty” except such as we, their mothers, see fit to indulge them with.

The illogic of current abortion law is impenetrable.

For some purposes and some people only, the killing or attempted killing of a “child who is in utero” is a criminal offense [18 U.S. Code § 1841 (a)(1)]. For other purposes and for other people, viz., the mother and her abortionist, the killing or attempted killing of her unborn child is protected from prosecution.

At the mere will of the mother, a child in her womb becomes by law a disposable rightless “member of the [human] species.”

It’s Time To Discredit Pro-Abortion Ideology

Justice Neil Gorsuch, in his dissent from June Medical Services v. Russo, exposed the problematic reluctance to resolve glaring logical inconsistencies bedeviling abortion jurisprudence.

“The real question we face,” he wrote, “concerns our willingness to follow the traditional constraints of the judicial process when a case touching on abortion enters the courtroom.”

Roe v. Wade did indeed trash the traditional constraints of the judicial process. To make abortions appear “lawful,” Roe introduced the disparaging ideological constructs of childless pregnancies and victimless abortion.

It’s time for the Supreme Court to recognize once again laws providing due process protection in every state and every jurisdiction for every one of these little ones targeted for professional killing while still in their mothers’ wombs.

It’s time for Supreme Court justices of integrity and courage to reinstate Magna Carta precedent. It’s time to restore justice for these newest smallest members of “our Posterity” to whom the Constitution promised “to secure” the same “Blessings of Liberty” as to “ourselves.”

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