The Viability of Roe, Part 4: The Misinterpretation of Legal Personhood

Another aspect important to an historical analysis of abortion is that there was widespread disapproval and prohibition of abortion during early pregnancy before, in the view of the science of the time, human life had been infused. Our ancestors’ biologically incorrect notions of when human life begins led Blackmun to assert that, historically, “abortion was viewed with less disfavor than under most American statutes currently in effect” (in January, 1973) and “[p]hrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does … today.”[1]

Regarding this important question, scholarly research reveals that recognition of the unborn as “persons in the whole sense” was largely determined by the biological and medical knowledge of each historical era[2]. The ovum and the actual nature of fertilization were not discovered until the nineteenth century, and prior to this, scientists and contemporaneous jurists supposed that human life commenced at “formation,” “animation,” or “quickening.” Abortion was seen as unquestionably homicidal only after the gestational point at which, in light of the science of the time, human life was finally understood to be present. [3]

Many legal scholars have pointed out that other areas of law, such as torts property and criminal law, all recognize the unborn child as a person with legal protections under the law.

[M]edical authority has recognized long sense that the child is in existence from the moment of conception, and for many purposes. It existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or dissent… All writers who discuss the problem have joined in condemning the old rule, and maintaining that the unborn child out of an automobile is as much a person in the street as the mother. [4]

In reference to property law, in 1941, a New York Court stated: “it has been the uniform and unvarying decision of all common law courts in respect of the state matters for at least the past two hundred years that a child en ventre sa mère (in its mother’s womb) is ‘born’ and ‘alive’ for all purposes for his benefit.”[5]

The rules of property law have not changed, and pre-born children are still afforded their just legal protections. If property law recognizes the rights of a child in its mother’s womb, it makes no sense that the court would deny them, especially since property was not the only area of law in which those rights were recognized.

By 1971, twenty-nine states and the District of Columbia allowed suits for prenatal injuries based on tort law, and an additional nine rejected the viability distinction and allowing recovery[6]. In 1953, a New York State appellate court found that:

We ought to be safe in this respect. In saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and foetal development now than when some of the common-law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.[7]

This rationale was also stated by the Pennsylvania Supreme Court in 1960:

As for the notion that the child must have been viable when the injuries were received, which is claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception.[8]

Today, only three states do not provide tort claims for prenatal injuries, nearly 3 thirty states allow for recovery at any point in the pregnancy[9]. This is yet another example of the schizophrenic nature of the Supreme Court denying pre-born children recognition under the law, when the law of torts clearly recognized their rights.

In criminal law, the quickening distinction was dropped my most a legislatures by the 1860s as medical science progressed, and today thirty-eight states have abolished the born alive rule in the lower prosecution for fetal homicide at any time in the pregnancy.[10]him him

Justice Blackmun, writing for the court in Roe, stated that the court did not need to decide the “difficult” question of when life begins, but this is the most important question to be decided. Because it is not the courts job to decide what philosophy or religion is correct, it must be scientific fact which dictates who is covered by the Constitution.  There is no doubt that human life begins at conception (also called fertilization), and even the most cursory glance into the science of fetal development would confirm this fact.[11] The court gave no rationalization for why a human and a person were separate entities, that required separate legal protections under the law, and many have criticized this distinction as similar to the one the Court made in Dred v Scott.[12]

[1] Roe

[2] Roger Resler, Compelling Interest, page 19 – 30

[3] Compelling Interest, page 26

[4] Prof. William Prosser Law of Torts at 335.

[5] In re Holtenhausen’s Will, 175 Misc. 1022, 26 N.Y.S.2d  140 (NY Surr. Ct. 1941).

[6] Abuse of Discretion , page 275

[7] Kelly v. Gregory, 282 App.Div. 542, 125 NYS.2d 696, 697 (1953).

[8]Sinkler v Kneale, 401 Pa. 267, 164 A.2d 93, 96 (1960)

[9] Abuse  of Discretion, page 283 figure 7.

[10] Abuse of Discretion, page 284-5  figure 9.

[11] See e.g. (a compilation of quotes from recognized medical textbooks and authorities,  on when human life begins)

[12] See e.g Compelling Interest, page 20;  Justice Scalia’s dissent in Planned Parenthood v. Casey at 998

Update: LSU Law Advocates for Life

Last night we held our first SBA meeting since I requested provisional status for our new Pro-life Student Group at LSU Law. The full SBA has to vote on approval of new student groups, so it got brought up in last night’s meeting. I have to say, I was a little thrown off by the amount of debate that preceded the vote.

While I understand that there are certainly going to be people that disagree with the premise of the group, I sincerely believed that it wouldn’t be an issue in regards to approving us as a group. After all, at LSU Law, we have groups dedicated to many different causes and viewpoints- OutLaw, which is for LGBT students; BLSA, which for black students; Christian Legal Society, for Christian students; and a Veteran’s Society. I don’t see why a pro-life group should be treated any differently than these groups. All views deserve equal recognition if they are willing to follow the rules.

Here is an excerpt from the minutes of last night’s meeting:

LSU Law Advocates for Life – Represented at meeting by Deanna Candler. New organization seeking provisional status.Handout on projector: Statement for Provisional Status from LSU Law Advocates for Life
James: They meet our provisional requirements.
Justin: What are the provisional requirements?
James: Under Article XII, Section 2:That the group has at least eight or more members
That the membership of the group is open to all Members of the Association;
That the group has a leader and include the name of the leader;
That the group has undertaken creative activities that promote educational, social, or charitable endeavors that contributes to the Law Center or the community at large;
That the group will abide by any decision of the Ethics Committee and any legislation, policy, or rule adopted by the officers of the Association and the Council of Student Organizations;
The group’s purpose, goals, and needs; and
Any other additional requirements required by the officers of the Association.
Ken: What does the organization plan to DO?Deanna: In keeping with the goal of promoting life, the org plans to bring in speakers regarding life on topics of euthanasia and others.
Ken: Will it include issues of human trafficking?
Deanna: Narrower focus
James: We’re open to organizations that are open to all members in principal but not in practically, and this organization will have to accept that some will feel/be excluded.Val: Personally okay with approval, but make sure that those who run the organization are familiar with regulations as to not violate 501(3)(c) statusDrew: This gets closer to “advocating” and does not have a safe non-bias place in the law school. There cannot be a Casino Night, but we can
James: This is like the Hastings case that involved a Christian Legal Society; you can have organizations that have these beliefs provided that they’re open to ALL people. In Hastings, they limited membership to “Christians,” and that was a problem.
Drew: Is someone going to come along in and make a pro-choice society as well?
Justin: There are groups on campus that are narrowed to a certain belief system and even age-groups

Wood: This is advocating because “advocate” is in the name. Being so narrowly tailored, the organization would be out of topics in a month. In his experience, visual display will become offensive to people – fetus displays, baby photos, etc. It can become inappropriate.
Ali: Are there Law Centers around America with similar organization?Deanna: There is a national group through Americans United for Life. The goal is not to become an apologetic group for life but just to address legal issues. There are a ton of specific legal topics to discuss. The intention is to have LEGAL focus with legal speakers and possibly legislatures, not just in general pro-life.
Drew: Yale has one of these programs.
James: There’s likely a constitutional problem with voting this down.
Drew: There were issues with the approval at Yale; Harvard has one too.
Sarena: Possibly need to change our SBA constitutional regarding the rules on organization because some may need to be combined/limited. With so many organizations, it is becoming difficult just to reserve rooms.
Drew: For instance, a Pro-life group and Federalist could just work together.
Wood: This is a conversation to let you (Deanna) know how to go about leading an organization like this; it’s not violating the constitution to make this discussion – it’s saying that there is overlap with groups that already exist, that there may not be enough topics to sustain your organization, and being sensitive to other students with the visual projects, etc.
Dixon: Logistically with the posting of baby photos etc, the posting policy that will be complete by the end of the semester would prohibit that kind of posting
Ken: Planning any protest?
Deanna: Only thing that comes to mind is letting the students know that the LSU main campus organization does protest at the Delta Clinic, but as for organizing a specific protest, hasn’t been the plan.
Ken motions for approval of provisional status. Neal seconds. 8 in favor / Drew, Savannah, and Chris decline / Jeffery abstains – MOTION PASSES

When it’s all said and done, the Provisional Status was granted with 3 dissenting. I gather from this, that the opposition to this group may be larger and more vocal than I originally reckoned. While getting the group established, and making an impact on the Law Center’s community might be an uphill battle from here, I am determined to see it through. This is without a doubt my passion and my calling in life, and I will fight the good fight.

1 Timothy 6:12

“Fight the good fight of faith, lay hold on eternal life, whereunto you are also called, and have professed a good profession before many witnesses.”