Unborn Children as Constitutional Persons by ProQuest


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                 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 greg.roden@comcast.net. 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.
       As quoted by Justice Blackmun in Roe v. Wade, 410 U.S. 113, 142 (1973).
       Roe, 410 U.S. 113, 156 (1973).
       Id. at 156-57.
       Id. at 158.
       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
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