The Paradox of Persons Forty Years After Roe

 
 

The Roe Court’s suppression of a foundational question—who is the law for—means that the decision could be overturned by any of several feticide cases that could reach the current Court.

Abortion is the great civil rights issue of our time because it raises—uniquely and compellingly—every society’s foundational question about law and justice: Who is the law for? For whose benefit do we plan, build, and apply this vast apparatus we call the “rule of law”?

The question is foundational because it is prior, in status and importance, to the question: What shall the law be? It is foundational because answering it correctly is essential to justice. Anyone can see that even the most refined arrangement of legal rights and duties counts for naught if the strong can manipulate the foundational question, and deny the benefits of law to those they wish to exploit.

Jurists as far back as Justinian in the sixth century correctly saw that law is for persons, not the other way around. Persons are the point of law; law is their servant.

Persons are not entities identified through policy analysis. They are not the sums of interests balanced, the deliverables of a vast progressive agenda. The older jurists saw, too, that the question of “personhood” could not be an intra-systemic riddle, solved by a feat of technical legal reasoning, and answered with a legal fiction.

Being prior to law and indispensable to justice, the foundational question must be answered according to the truth: Everyone who really is a person counts in law as one.

Seeing the parity here is not perforce to see the truth. To ask the right question is not straightaway to get the right answer. Serious and good people have been wrong about when persons begin, for example, due to their misunderstanding of human reproduction.

It is another matter entirely to say that the law is opaque to, and even uninterested in, the truth about who counts as a person. This is the sin of Roe v. Wade, as it was of Dred Scott v. Sandford.

Justinian and his successors would have been horrified by the pettifoggery of the Roe Court, which set upon the foundational question about persons with the zeal of a clerk, and the charity of a highway robber. The Court undertook to authorize the use of deadly force upon a class of beings without ever concluding that the victims were not really persons. The Court tried, in other words, to suppress the foundational question.

To its great credit, the pro-life movement has resisted this suppression, preserving the spirit of justice and promoting a willingness to face its demands unafraid. The fruits of this effort, along with the revelations of neonatal and genetic science and some signal legal successes, provide an opportunity to exploit a portentous flaw in Roe’s jerry-rigged edifice. Since the Roe Court didn’t answer the foundational question, the current Court may have to revisit and answer it, on terms favorable to the pro-life cause, in the near future.

Opportunities to Revisit Roe

The protagonist of the possibly epic Supreme Court reconsideration of Roe will not be a Good Samaritan or a heroic state official. He will be a bad man, one who has killed his own unborn son or daughter.

This protagonist doesn’t share the sentiments of pro-life marchers in Washington, DC. He is no champion of human rights. He simply wants his conviction reversed. But his constitutional arguments would nonetheless force the justices to confront, as they never have before, the foundational question they suppressed in 1973.

The protagonist might be Airman First Class Scott Boie. Boie was never happy about his wife’s pregnancy, and asked her to have an abortion. When she refused, he bought some Misopristol, an abortifacient commonly used in lawful chemical abortions. He ground the drug into a powder and secretly put some of it into his wife’s food and drink on four different occasions. She soon miscarried. After admitting what he had done, Boie pleaded guilty under the federal Unborn Victims of Violence Act (2004) to the lesser offense of attempting to kill his child. Boie was dishonorably discharged, and sentenced to nearly ten years in prison.

The protagonist might be Gerardo Flores. By the time his girlfriend Erica Basoria discovered that she was pregnant with their twins, it was too late: Her physician said that neither he nor any other local doctor could safely perform the abortion she wanted. Basoria testified at Flores’s capital murder trial that she asked him—repeatedly—to help her end the pregnancy by stepping on her abdomen. He did so, often. Basoria even supplemented Flores’s efforts by striking herself in the stomach every day. None of it worked. Basoria later delivered stillborn twins. Flores was sentenced to life in prison. Basoria was not prosecuted.

At least thirty-eight states have enacted “feticide” laws since 1973. The Unborn Victims of Violence Act (UVVA) is typical of most. It says that “whoever” “causes the death of, or bodily injury to,” a “child who is in utero” is guilty of an offense distinct from any accompanying offense against the woman carrying the child. This separate offense is subject to the same punishment as identical misconduct against the “unborn child’s mother,” which would be the same punishment if the offense were committed against anyone else. A “child in utero” is, according to UVVA, a “member of the species homo sapiens, at any stage of development, who is carried in the womb.”

UVVA contains, like its state counterparts, an exemption for lawful abortion sought by a pregnant woman. This means that the unborn child enjoys from its very first moment a right not to be killed, good against the whole world, the same right that you and I enjoy—with the momentous exception that the child’s mother may abort it.

Feticide laws may govern deadly transactions even where the child survives unscathed. Jaclyn Kurr stabbed her boyfriend, Antonio Pena, to death. She was convicted after trial, notwithstanding her contention that she killed Pena after he “punched her two times in the stomach and [after she] warned Pena not to hit her because she was carrying his babies.” Evidence at trial indicated that Kurr had indeed recently become pregnant. But the trial court denied her request that the jurors learn that her use of lethal force was justified if she had a reasonable fear that Pena was going to kill, or cause serious bodily harm, to her or their unborn baby.

Kurr’s conviction was overturned on appeal. The higher court held that Michigan’s Unborn Children’s Protection Act permitted the use of deadly force in defense of an unborn child of any age. “Indeed, she may under the appropriate circumstances use deadly force to protect her fetus even if she does not fear for her own life,” it declared.

Some men insist that they can share the same motives a woman might have for an abortion. After all, the “detriments” (the Court’s word) that underwrote the abortion liberty in Roe are not really about pregnancy. Only one of the seven challenges the Court catalogued had to do with carrying a child in the womb: “medically diagnosable harm” during pregnancy. The other reasons cite the future burdens of rearing a child.

Roe makes clear that abortion solves not the problem of pregnancy, but of rearing a child. Solving the problem involves terminating that child, not terminating pregnancy.

Airman Boie protests the fact that he is never justified in trying to avoid these harms by doing what she is never even asked to justify, namely, killing their child yet unborn. He and his peers argue that once the legislature has decided to treat the unborn as homicide victims, the law may not hold him responsible, while completely exempting her for doing the same thing.

Though they could allow that the child’s presence in the mother’s body makes a difference—since pregnancy threatens her life, she is justified in having an abortion—Boie and cohort maintain that the pregnancy difference must still be subject to overarching principles of justification and excuse, applicable to all.

These defendants would use Roe to save themselves. They maintain that treating the unborn as homicide victims is to treat them as persons, which violates Roe. But this won’t work. Feticide laws do treat the unborn as persons. But that does not violate Roe, because a woman seeking an abortion cannot be prosecuted under them, due to specific exemptions written into these laws. The Roe Court stated that legislators may affirm what they wish about the personhood of the unborn, so long as they do not, “by adopting one theory [of when] life [begins], override the rights of the pregnant woman that are at stake.”

The Court has never denied state or federal lawmakers the constitutional authority to answer, truthfully, and as far as justice requires, the foundational question about who counts as a person—with the single proviso that pregnant women be given an immunity from interference when they seek a lawful abortion. Again: The Court has never declared that the unborn simply are not persons.

The Roe Court did decide that the unborn are not constitutional persons, based on their reading of the Fourteenth Amendment’s use of “person.” This conclusion was important because, as the Court plainly stated, the case for abortion liberty would otherwise “collapse.” The “fetus’ right to life would then be guaranteed specifically by the Amendment.” More specifically, the Court said that if the unborn were recognized as constitutional persons, then only abortions to save a pregnant woman’s life could be consistent with equal respect for the life of the unborn. In other words: To affirm the unborn’s constitutional personhood would assimilate abortion to reigning homicide law.

The Court’s Refusal to Say Who the Law Is For

The Court handled this problem by taking readers through a legal bog. Blackmun wrote that the “Constitution does not define ‘person’ in so many words.” Scanning the Constitution for references to “persons,” he sought a definition of “person,” or an answer to the question about when persons begin. All the references he found predicated certain duties, advantages, eligibilities, or penalties of “persons.” He discovered that slaves are “persons” (in the fugitive slave clause and in the infamous three-fifths apportionment compromise), and that only older “persons” could hold political offices (various age qualifications for presidents and members of Congress).

But, he argued, these stipulations do not “define”—specify, explain—who or what a “person” is, any more than a law saying that “no person may obtain a driver’s license before attaining eighteen years of age” establishes that the term “person” does not include pedestrians, or children.

Blackmun’s methodology was skewed to produce a desired result. His goal was not coherence or cogency; much less did he seek the truth. The payoff was functional: He saw the danger to abortion rights lurking in ambient norms about justified use of deadly force, and he wanted none of it. He threw up a verbal smokescreen to shield pregnant women from those norms, surely supposing that the only shield-piercing weapon nearby was the Fourteenth Amendment’s protection of “persons.” If that question could be finessed by entangling it in legal fictions and technical usage, then, the Roe Court reasoned, it was clear sailing to abortion rights.

But Airman Boie, Gerardo Flores, and Antonio Pena have exposed an undefended flank.

In fact, when the Fourteenth Amendment refers to “persons,” it points to and incorporates a moral reality. That is the most natural reading of the term “any person.” The only way to make sense of the amendment is to understand “person” as an exhaustive reference to a natural kind. Anyone can see that the aspiration to equality could be nullified, if public authority could “define” some human individuals as non-persons.

The historical record confirms these more general considerations. Ohio Representative John Bingham sponsored the Fourteenth Amendment in the House of Representatives. During debate over what is now Section 1, he said that its coverage was “universal.” It applied, Bingham declared, to “any human being.” Congressman Bingham’s counterpart in the Senate, Senator Jacob Howard, emphasized that the amendment applied to every member of the human family.

Newspaper coverage of the debate included references like “all men,” “all persons,” and “all men as equals before the law of God and man.” Addressing a large crowd on July 18, 1866, Indiana Governor Oliver Morton declared that Section 1 “intended to throw the equal personal and proprietary protection of the law around every person who may be within the jurisdiction of the state.” Two weeks later the New York Times said, “The equal protection of the laws is guaranteed to all, without any exception.”

The prevailing spirit is captured in the opinion of an Iowa court, handed down in 1868, the year of the Fourteenth Amendment’s ratification: The common law is “to be commended for its all-embracing and salutary solicitude for the sacredness of human life and the personal safety of every human being.” The court wrote that this “protecting, paternal care envelop[s] every individual like the air he breathes,” and it “not only extends to persons actually born, but for some purposes to infants in ventre sa mere.”

The Supreme Court in Roe nonetheless grounded its power to end the abortion controversy on the philosophical abstinence of state authority: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” As the Casey justices said when they affirmed the central holding of Roe in 1992, “Men and women of good conscience can disagree about the profound moral and spiritual implications of terminating a pregnancy.” They added: “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Roe’s shaky edifice is built on a studied and stubborn refusal to address the foundational question about who the law is for. This reticence is all the more remarkable because none of the seven justices in Roe's majority seems to have believed that the unborn really are persons. They reckoned nonetheless that the constitutional law they produced could not be grounded in any answer—theirs, yours, mine—to that philosophical question. Their reticence was supposed to credential the Court’s judgment as somehow uniquely objective and thus supremely authoritative.

Overturning Roe?

It will be awkward (at least) for the Court now to take up the foundational question it has long suppressed. But the justices have no feasible alternative. People such as Airman Boie raise Equal Protection challenges based on the definition of personhood. These challenges deserve a response.

It may be scarcely imaginable that the Court could now declare that the unborn are not really persons, that human life deserving respect does not, in truth, begin until birth, and that these judgments are conclusive upon state legislatures and the Congress. It may be scarcely imaginable that the Court could escape the dilemma presented by Airman Boie by declaring the UVVA—and by implication, all its state counterparts—unconstitutional. These laws and many others that treat the unborn as persons are permanent fixtures of our legal system. Sonograms, prenatal medical developments, DNA research, and a replenished common sense all show that what the unborn are, we all once were.

To say “scarcely imaginable” is not to say “unimaginable.” The pro-choice dogmatists on the Court might yet cling tenaciously to abortion rights. They might venture into the deep, and sweep away this latest threat to what they consider the non-negotiable demands of women’s equality.

Perhaps then the paradoxes of persons exposed by the feticide defendants have greater purchase on the Court’s conservatives, upon those justices who recognize the injustice of abortion and have long regarded Roe as an albatross around their necks. These men profess varying degrees of faithfulness to the original understanding of constitutional provisions. They have, however, shown little inclination so far to take up the challenge that the plain meaning and original understanding of the Fourteenth Amendment squarely place in front of them: counting the unborn as constitutional persons because they are really persons.

If not now, when? Abortion is not only the great civil rights issue of our time. It is the greatest human rights tragedy in America's history. There are now 55 million people dead by lawful abortion since Roe. That is a hundred times the number of Americans killed in combat during World War II. That is many millions more than all the persons enslaved in the course of American history. In abortion, a person is killed outright. But law is for persons, not the other way around. Persons are the point of law; law is their servant.

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The Public Discourse symposium on Roe at 40 features the following six articles; back each day for the new essay:

Ryan T. Anderson, “On the Fortieth Anniversary of Roe v. Wade: A Public Discourse Symposium

Elise Italiano, “Forty Years Later: It’s Time for a New Feminism

Michael New, “Abortion Promises Unfulfilled

Daniel K. Williams, “The Real Reason to Criticize Roe

Gerard V. Bradley, “The Paradox of Persons Forty Years After Roe

Michael Stokes Paulsen, “Abortion and the Constitution in Another Forty Years: A Right to Life for 2053

Gerard Bradley is Professor of Law at Notre Dame Law School.

 

 

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