Part 1 on Personhood

By Thomas A. Glessner, Attorney at Law

(Note: This is the first of a series of commentaries that discusses the concept of “personhood” and Constitutional protection for all “persons.”)

The American ideals of equality and justice under the law have over the years inspired many to stand up for the oppressed. Indeed, numerous politicians (including our current president) have run for public office by declaring that they are for “the little guy” who has no voice or representation in our special interest inflicted political institutions. Yet, our president along with most of these politicians (with some notable exceptions) ignore and even work against the interests of the most vulnerable of these “little people” — the unborn.

Dr. Suess, the beloved children’s author, wrote a delightful children’s story titled Horton Hears A Who. This is a story about a creature named Horton who discovers a tiny microscopic land named ‘Whoville.” Inhabiting this tiny world are creatures named “Whos” that are too tiny for the naked eye to see. However, Horton in making his discovery emphatically states on numerous occasions “a person’s a person no matter how small.”

The United States Supreme Court clearly lacked the wisdom of Horton when it handed down it infamous decision of Roe v. Wade on January 22, 1973. It is too bad that Horton was not present in the courtroom on that day to remind the Justices of the Court that indeed, “a person’s a person no matter how small.”

At the heart of the Roe decision was the declaration that an unborn child is not a person under the Fourteenth Amendment and thus, is not protected by the Constitution. This Amendment clearly states that “no state shall deny to any person … life without due process of law.” And, indeed, Justice Harry Blackmun in writing the Roe opinion acknowledged that if an unborn child is a person under this Amendment then abortion cannot be allowed because such an act would be violative of the Constitutional protections of the Fourteenth Amendment.

To the “average Joe” on the street an understanding of what constitutes a person is a no-brainer. The Merriam-Webster Dictionary provides an uncomplicated understanding of the meaning of person, which it simply defines as “a human being.” This definition to most is so obvious that it would be a waste of time and energy to further debate the issue. The Supreme Court, however, did not see it this way and held that although the unborn child may be a human being such a child is clearly not a person under the Constitution and thus, is not constitutionally protected.

Contrast the Roe decision with a ruling from the Court in the late 19th Century, which held that a corporation is a personunder the Fourteenth Amendment and thus, is entitled to all of the protections that this Amendment provides. However, because of Roe we have a legal system that says some human beings, i.e. the unborn, are not persons and are not protected under the Constitution while some nonhumans, i.e. corporations are persons and are protected.

At the heart of the cultural debate over abortion and related life issues is this concept of personhood. Since legal precedent now declares that unborn human beings are not persons are other born human beings also vulnerable to such dehumanization and thus, subject to indiscriminate killing for reasons that society comes to accept as reasonable?

The logic stated in Roe to justify the dehumanization of the unborn is that the Court viewed lives in utero as not capable of “meaningful life outside the womb.” Thus, such lives, according to the Court, are not persons and therefore are denied the Constitutional protection of the Fourteenth Amendment.

We should ask the Court a pertinent question that logically flows from its declaration of non-personhood for the unborn. If the life of an unborn child is not meaningful because it is a burden what about the lives of the terminally ill, the infirm, the seriously handicapped, and the retarded? If such lives, like the unborn, have no meaning then are they also not consideredpersons and thus, denied Constitutional protection? And who decides which lives are “meaningful” and thus protected and which lives are not?

There is now a movement across the nation to legislatively address the issue of personhood and create a test case to go before the Supreme Court and challenge Roe v. Wade. The North Dakota Legislature is considering passage of a law that would define a person to include the unborn. The bill states: “For the purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens.”

This bill has passed the North Dakota House of Representatives and is now being considered by the state Senate. It could be passed and signed into law by governor John Hoeven, a conservative Republican, within a couple of weeks. Other states are also considering similar measures to define personhood and set up a confrontation with the United States Supreme Court over the precedent of Roe v. Wade.

The continuing battle over the sanctity of human life will continue to rage across the nation. As it does this foundational battle over the Constitutional personhood of the unborn must be at the forefront if we are truly going to be successful in restoring the sanctity of life ethic in our culture and institutions.

(The next commentary will discuss the Scriptural view of the personhood of the unborn.)