Newsgroups: talk.abortion
Subject: Re: On the claim that fetuses were "persons" under law prior to Roe v Wade
From: kck+@cs.cmu.edu (Karl Kluge)
Date: Sat, 3 Oct 1992 02:30:37 GMT
Organization: School of Computer Science, Carnegie Mellon

> Sender: news@ncsu.edu (USENET News System)
> Reply-To: dsholtsi@csl36h.csl.ncsu.edu Doug Holtsinger)
> Date: Fri, 2 Oct 1992 16:28:51 GMT
> 
> Before Roe v. Wade, there was never any Constitutional right for an
> individual to kill a human being.

Nonsense. Prior to Roe, there were no laws or Constitutional clauses
imposing a duty to continue external life-support for brain-dead
individuals, yet such individuals are clearly human beings. They may have
ceased being persons, they are still human beings. Can you provide a
criterion for deciding personhood broad enough to include fetuses at
conception which won't include brain-dead individuals on life-support?  Both
are genetically separate individuals being kept alive by external support.
Or do you want to draw the line after conception, and if so, where?

Note that if you want to retreat to protecting potential personhood, you run
into the problem posed in the majority decision in PP vs. Casey:

"Nor will courts building upon Roe be likely to hand down erroneous decisions
as a consequence.  Even on the assumption that the central holding of Roe
was in error, that error would go only to the strength of the state interest
in fetal protection, not to the recognition afforded by the Constitution to
the woman's liberty.  The latter aspect of the decision fits comfortably
within the framework of the Court's prior decisions including Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), Griswold, supra, Loving
v. Virginia, 388 U. S. 1 (1967), and Eisenstadt v.  Baird, 405 U. S. 438
(1972), the holdings of which are -not a series of isolated points,- but
mark a -rational continuum.-  Poe v. Ullman, 367 U. S., at 543 (1961)
(Harlan, J., dissenting).  As we described in Carey v. Population Services
International, supra, the liberty which encompasses those decisions 

     -includes `the interest in independence in making certain kinds of 
     important decisions.'  While the outer limits of this aspect of 
     [protected liberty] have not been marked by the Court, it is clear 
     that among the decisions that an individual may make without
     unjustified government interference are personal decisions `relating 
     to marriage, procreation, contraception, family relationships, and 
     child rearing and education.'-  Id., at 684-685 (citations omitted).

THE SOUNDNESS OF THIS PRONG OF THE ROE ANALYSIS IS APPARENT FROM A
CONSIDERATION OF THE ALTERNATIVE.  IF INDEED THE WOMAN'S INTEREST IN
DECIDING WHETHER TO BEAR AND BEGET A CHILD HAD NOT BEEN RECOGNIZED AS IN
ROE, THE STATE MIGHT AS READILY RESTRICT A WOMAN'S RIGHT TO CHOOSE TO CARRY
A PREGNANCY TO TERM AS TO TERMINATE IT, TO FURTHER ASSERTED STATE INTERESTS
IN POPULATION CONTROL, OR EUGENICS, FOR EXAMPLE.  YET ROE HAS BEEN SENSIBLY
RELIED UPON TO COUNTER ANY SUCH SUGGESTIONS. E.g., Arnold v. Board of
Education of Escambia County, Ala., 880 F. 2d 305, 311 (CA11 1989) (relying
upon Roe and concluding that government officials violate the Constitution
by coercing a minor to have an abortion); Avery v. County of Burke, 660 F.
2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo
unwanted sterilization on the basis of misrepresentation that she had sickle
cell trait); see also In re Quinlan, 70 N.J. 10, 355 A. 2d 647, cert. denied
sub nom. Garger v. New Jersey, 429 U. S. 922 (1976) (relying on Roe in
finding a right to terminate medical treatment)."