Pro-Choice

Abortion should be illegal in the United States. The abortion debate centers on proponents of legalized abortion calling themselves "pro-choice," and opponents of legalized abortion calling themselves "pro-life." As I accept my opponent's definition of pro-choice meaning "favoring the legalization of abortion," it is my contention that the only way to make abortion legal is by denying that the unborn (which I define as any human zygote, embryo, or fetus from conception until birth) are "persons" within the meaning of the Fourteenth Amendment to the U.S. Constitution. 1. The Subject of Choice Those who favor legalized abortion will never call themselves "pro-abortion," but "pro-choice."The term "pro-choice" and the phrase "supporting a woman's right to choose" are only valid if and only if you deny the humanity of the object of your choice. By the same logic there were no pro-slavery people prior to the Civil War. White people weren't forced to own slaves, it was a matter of choice. "Against slavery? Don't own one." Sound familiar? Slavery was made possible by the horrible Supreme Court decision "Dred Scott v. Sandford", 60 U.S. 393 (1857), By a 7-2 decision, the Court held that those of African descent cannot be, nor were ever intended to be, citizens under the Constitution; they were sub-human property. It took the Thirteenth and Fourteenth Amendments to fully rectify this incredible injustice. In 1973, the Supreme Court, in a similar 7-2 decision, declared the unborn as non-persons under the Fourteenth Amendment in "Roe v. Wade", 410 U.S. 113 (1973). In the majority decision, authored by Associate Justice Harry Blackmun, it is readily admitted that, "If the suggestion of personhood (of the unborn) is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the (Fourteenth Amendment). " 2. "Roe v. Wade" was wrongly decided because the unborn are persons under the Fourteenth Amendment Justice Blackmun uses three reasons in combination for his conclusion that the unborn are not Fourteenth Amendment persons. First, he maintains that "the Constitution does not define 'person' in so many words," and goes on to list all the places in the Constitution in which the word "person" is utilized: Sections 1,2,3 of the Fourteenth Amendment, the listing of qualifications for representatives and senators, the Apportionment Clause, the Migration and Importation Provision, the Emolument Clause, the Electors Provision, qualifications for president, the Extradition Provision, the superseded Fugitive Slave Clause, and the 5th, 12th, and 22nd Amendments. According to the opinion, "in nearly all these instances, the use of the word is such that it has application postnatally" with no "possible prenatal application." Second, he relates how the State of Texas (defender of the statute forbidding abortion) could not cite to a single case in which a court held the unborn as persons under the Fourteenth Amendment. Third, throughout most of the 19th century, abortion was practiced with fewer legal restrictions than in 1972. Based on these three reasons, the majority opinion concludes that the word "person" as used in the Fourteenth Amendment does not include the unborn. Each of these reasons is seriously flawed. Rebuttal to reason 1. In citing the Constitutional provisions that apply to postnatal human beings, Blackmun begs the question, for none of the provisions defines the meaning of the word "person," and thus does not exclude the unborn. Indeed the provisions concern matters that apply to already existing persons. The Fourteenth Amendment defines CITIZENS as "all persons born or naturalized in the United States, and subject to the jurisdiction thereof," but it never defines PERSONS. It seems to be saying birth is a state that persons undergo rather than an event that makes them persons, and thus the unborn are persons who shift from prenatal to postnatal when they are born. Another example is the qualification of congressmen and senators (Art. I sec. 2, cl. 2; Art. I, sec. 3, cl. 3), which states that members of the House must be at least 25 years old, and members of the Senate at least 30 years old, but clearly the Court cannot maintain the unborn are not persons since they can't hold these offices, for then a 20 year old would not be a "person" either. Rebuttal to reason 2. Ironically, although Texas did not cite to a case that declared the unborn persons, the majority opinion in Roe DID, but Blackmun conveniently left out the following analysis from "Steinberg v. Brown,"321 F. Supp. 741 (ND Ohio, 1970): "It seems clear, however, that the legal conclusion in 'Griswold' as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein, voluntarily or involuntarily, the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it." The court in "Steinberg" suggested something very uncontroversial: a legal principle has universal application. so, for example, if a statue against burglary was enacted before there were computers, it would not follow that the prohibition does not cover computers and you are free to steal one because the "original intent" of the statute's framers did not include computers. The important idea is that computers are PROPERTY --something that can be owned and the subject of the statute-- whether or not the framers knew about computers at the time of passage. Analogously, the Free Exercise Clause and Establishment Clause of the First Amendment apply to religions that didn't exist in 1789, like the Mormons. Therefore, the provisions of the Fourteenth Amendment would apply to the unborn as persons even if the framers of the amendment did not have the unborn in mind, and even if no case law specifically mentions them. Rebuttal to reason 3. Blackmun's argument here actually works against his position. Legal scholars have noted that as medical science made advances, the anti-abortion statues were enacted to protect the unborn as human life. That's why by the end of the 19th century, abortion was prohibited throughout pregnancy. They believe further that there were compelling reasons that at the time of the Fourteenth Amendment (1868), such that the common understanding was the unborn were persons (at least after "quickening") and should be protected by law (even before quickening) by legislation completely in accord with the Constitution. (See historical analysis with citations to the relevant literature in Krason, Stephen M.,"Abortion: Politics, Morality and the Constitution," Lanham, MD: University Press of America, 1984, pgs. 164-175). We can see that the reasons are specious in Roe. Blackmun wrote, "We need not resolve the difficult question of when life begins." Then he goes on to do just exactly that by creating a "trimester framework" for the permitting of abortion. He thereby resolved the question as to what is and is not human life. Biology tells us life is continuous. Living human cells can only come from other living human cells. There is no point where life "stops" (except death) and "starts." A zygote is a diploid gamete with its own unique DNA different from both mother and father. Even if we don't know "when human life begins" this is a defeater for legal abortion. If you're hunting in the woods and not sure if you saw a human or a deer, would you fire into the bushes and hope you guessed right? Would you not be constrained from even possibly taking an innocent human life? The burden of proof is on the proponents of legal abortion to prove the unborn non-persons. Unless they can conclusively prove, beyond a reasonable doubt and to a point of moral certitude, that the unborn are non-persons, we must protect them as if they are persons. Hence, the unborn must be considered as persons under the Fourteenth Amendment, and may not be deprived of the right to life without due process of law. Therefore, abortion should not be legal in the United States.