[...] per Erie R. Co. v. Tompkins, the Supreme Court has bound itself and the federal courts to the states' interpretation of their own laws as There is no federal general common law. [...] the logic of Roe v. Wade fails in every manner. [...] the Court admitted that the unborn were persons,434 yet denied their personhood on the wholly unsubstantiated and contrived criteria that the unborn are not persons in the whole sense.
___________________________________ Unborn Children as Constitutional Persons Gregory J. Roden, J.D.* An honest judge on the bench would call things by their proper names.1 – AMA Committee on Criminal Abortion (1871) 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.” 2 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.”3 However, Justice Blackmun then came to the conclusion “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”4 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 explic- itly 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 the jurisprudence of [the Supreme] Court.”5 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 * Attorney, Eden Prairie, Minnesota. B.B.A., with honors, 1979, University of Wisconsin- Madison; J.D., 1991, South Texas College of Law. Member of the United States Supreme Court Bar and Minnesota State Bar. Correspondence may be sent to email@example.com. I would like to express my gratitude to God for this opportunity to labor in His vineyard. I also thank my wife, Claire H. Roden, for her support throughout this project and for her editorial advice. I also extend a special recognition to Arlene Sieve for her expert proofreading; any perceived remaining errors may be attributed to the author. 1 As quoted by Justice Blackmun in Roe v. Wade, 410 U.S. 113, 142 (1973). 2 Roe, 410 U.S. 113, 156 (1973). 3 Id. at 156-57. 4 Id. at 158. 5 Printz v. United States, 521 U.S. 898, 905 (1997). 186 Issues in Law & M edicine, Volume 25, Num ber 3, 2010 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,6 tort,7 and property law,8 the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons.9 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 recogniz
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