I’ll start with a commonly-voiced question: when does human life begin?
And now I will answer that question: no one can say for certain; or, at least no answer will ever be given definitively. The question could possibly answered, either scientifically, medically, or even morally – but in such a heavy political context, no answer will be accepted – ever.
Now the Law doesn’t have the luxury not to answer this question: the Law is required to make a decision, to the best of its ability, because lives depend on it. Because they Law will always be a “best-effort” proposition: Congress makes laws that are loosely defined, precisely for the reason that real use-cases are required to refine and reform legislation. No one has every presumed, in this Country, that the lawmakers have such wisdom and foresight that they came come up with THE right answer, even after lenghthy debate.
Our Constitution – has Amendments! Yes even the core Law of the Nation was ill-conceived, and required revisions – almost from the start. In fact, the Amendments ARE the Constitution. The original 1787 U.S. Constitution was designed as a structural framework for a government, not a statutory legal code. Its primary purpose was to establish branches of government and grant Congress the _power_ to write legislation (found in Article I, Section 8). There isn’t really any “law” in the original, with the exception of some “rules” – which are definitely binding – but would not in any way be sufficient to govern a Nation. In point of fact, many of these rules are heinous, misanthropic support for the subjugation of the African slave, and, as such should be stricken from the US Constitution, but cannot be, due to the strict forbiddance of Constitutional alterations. Do these surprise you?
– **The 1808 Slave Trade Ban (Article I, Section 9):** The Constitution directly legislated that Congress was forbidden from banning the importation of enslaved people prior to the year 1808, though it allowed a tax of up to $10 per person.
– **The Fugitive Slave Clause (Article IV, Section 2):** This mandated that enslaved individuals who escaped into free states were not emancipated by those states’ laws and had to be returned to their enslavers.
– **The Three-Fifths Compromise (Article I, Section 2):** It established a strict mathematical formula for taxation and congressional representation, counting each enslaved person as three-fifths of a free person.
There is no clause in the Constitution, nor in any Amendment, regarding the beginning of human life. Why is this important? Because there is a clause stating that the US Government, and all its legal powers, are required to defend the Rights of every Citizen. This means that a definition of the scope of “citizen” is required. This definition does not come until the 14th Amendment:
The Citizenship Clause:
> _”All persons **born** or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Now, there is really no debate, at least with this language, that US Citizenship begins at birth, and the moment of “birth” is presumed self-evident: once you leave the womb. The 14th Amendment goes on to state:
> _”…nor shall any State deprive any **person** of life, liberty, or property, without due process of law; nor deny to any **person** within its jurisdiction the equal protection of the laws.”_
There exists a possible ambiguity here, as to whether being a “person” could happen before birth, and, if so, then the law of due process would apply to unborn “entities” (for fear of calling them “human beings, as though this were really a controversial notion).
Therefore, the Constitution does not provide any protection for and unborn fetus – only to the mother. According to the Constitution, the unborn fetus is neither a person nor a Citizen. Because the Constitution is silent on when life begins, and ties constitutional rights to birth, the federal government does not have a supreme, unified definition of prenatal rights.
This is not opinion. Please. This is the mess we are left to deal with in our “free” society, and, this is not the only case of Constitutional conundrum – but again, as for the Constitution, there is NO conundrum: the “prenatal entity” is completely unprotected and vulnerable, under Federal Law.
Thank goodness this same Constitution DID provide for States’ Rights, which allows individual States the Constitutional mandate to supply their own definitions, even in contrast to the Constitutional implications. I think it’s easy to see that, in many cases now: marijuana and heroin are still Federally Class C substances, and possession of either would be a Federal crime – a felony, with stringent consequences. However, in Massachusetts, for example, the State Law allows a Resident to buy, use, and even grow, Marijuana (up to 8 plants!) I’ve always thought this distinction between State and Federal is exactly what makes the “united states” possible: human nature surely prevents a heterogeneous population from EVER agreeing on everything, hence, such a society should/must fail. Yet, if variation is allowed between States, it allows the diverse elements to choose a State that aligns with their worldview. In other words, we can all agree to disagree, and we can all live together, yet separately. This is another topic, but a critical one to the survival of our experimental society.
“Fetal personhood” is the legal framework that assigns the rights, protections, and privileges of a born human being to a fetus, embryo, or fertilized egg. Because there is no federal constitutional definition of when personhood begins, this issue is entirely in the hands of individual states. The shift toward fetal personhood alters the fundamental legal subject in these cases:
Comparing the Legal Frameworks
The shift toward fetal personhood alters the fundamental legal subject in these cases:
| Legal Domain | Traditional Application | Personhood Application |
|---|---|---|
| Criminal Law | Assault on the pregnant person | Homicide or assault of the fetus |
| Civil Law | Malpractice/injury to the pregnant person | Wrongful death lawsuits on behalf of the fetus |
| Family Law | Child support and tax status begin at birth | Child support and tax status begin at conception/heartbeat |
| Property/Storage | Frozen embryos treated as biological property | Frozen embryos treated as legal minors |
When States’ rulings begin to mount to such a point that they begin to represent the “will of the People”, there is a chance (and we have lived this scenario) that the Constitution could actually be amended. Recall above the original clauses regarding “slaves” – that a slave is considered 3/5 person – note the use of “person”, not “Citizen” – it took a long time for “slaves” to reach the “status” of person! But then longer for them to be considered Citizens – with rights such as due process, voting, etc. Really. Imagine that! Because you can see it! Blacks and Women have all lived – and died – under this incredible bullshit! It’s been a bloody war, the the bloodshed has been mostly on the side of the victims. How does “three-fifths a person” not resonate with these other maligned and oppressed communities?
To be clear, NONE of this legislation – the “good” or the “bad”- is based on fact. The Science™ is also flawed, or silent, and, in any case, will be overridden by Public ignorance – right? But the conclusion is dire: if these unborn entities are indeed real humans, then we are committing a lot of murders, without due process. That’s the implication of the one side. The implication of the other side is largely inconsequential: no “human being” is ever harmed by abortion, and everyone can get on with their lives. What do you think?