Dr. Charles Lugosi, LL.B., LL.M., M.B.E., S.J.D. (2006)
Science, history, and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of “person” under the Fourteenth Amendment…There can be no “rule of law” if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings.
What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.
Is a living human embryo or fetus a “person” within the legal meaning of the Fifth Amendment and Fourteenth Amendment to the U.S. Constitution? Put somewhat differently, is the unborn human child—despite not yet being born—nonetheless constitutionally a “person” whom the state may not deprive of life “without due process of law” and to whom the several states owe a constitutional legal duty of “equal protection of the laws” from the private violence or wrongs of others, or the discrimination of the state? This, I submit, is a close, difficult, and exceedingly important constitutional question. The better answer—but by no means an incontrovertibly clear answer—is yes.
In Roe v. Wade, the United States Supreme Court held that human fetuses are not “persons” protected by the Fourteenth Amendment, and states do not have a “compelling interest” in protecting the lives of human fetuses, sufficient under the Fourteenth Amendment to justify prohibition of abortion…The Court based these conclusions most fundamentally on its assertion of historical fact that the nineteenth-century state common law and statutory law of criminal abortion never manifested a recognition of the personhood of human fetuses. This assertion is fundamentally erroneous.
Roe v. Wade is in the worst tradition of a tragic judicial aberration that periodically wounds American jurisprudence and, in the process, irreparably harms untold numbers of human beings. Three generations of Americans have witnessed decisions by the United States Supreme Court which explicitly degrade fellow human beings to something less in law than”persons in the whole sense.” One generation was present at Scott v. Sandford, another at Buck v. Bell, and now a third at Roe v. Wade. Are not three generations of error enough?
The acceptance by society of what is essentially the Nazi ethic is neither progressive nor inevitable. The abortion trend, the legalization of the killing of innocents for convenience, can be reversed. We can begin that reversal by recognizing in our law the basic reality that as far as his right to live is concerned, the child in the womb is a person. We must affirm that innocent life is not negotiable. And we must reestablish the basic equality of all before the law. To hold now that certain human beings may constitutionally be defined as nonpersons, so as to subordinate their right to live to the discretion of others, is to reincarnate the evil doctrine of human slavery.
Abortion, the right to privacy, the right to life-these topics have been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade and Doe v. Bolton. These decisions have not settled the abortion controversy: it continues in Congress, in the courts, and in the media. The subject matter is complex and may be debated at many levels. However, without a focus or common ground of discussion, efforts toward resolution inexorably lead to more debate, more confusion, and ultimately, frustration and anger for the parties involved.
Over the past year, debate and discussion over the direction of the pro-life movement has increased profoundly. National leaders of the movement, including Catholic leaders, have eschewed—and in some cases directly opposed—efforts to pass constitutional “human life amendments” at the state level. Instead of supporting such a strategy, they largely favor the current “incremental” approach, which offers no plan or promise of ending abortion in the foreseeable future. After 35 years of abortion on demand through all nine months of pregnancy, it is time to rethink pro-life strategy and the efficacy of the national pro-life movement.
Robert Muise of the American Freedom Law Center defends the Personhood strategy and Clarke Forsythe argues for incrementalism based on the virtue of prudence.
The close relationship between the social conscience and representative democracy is at the heart of American and world history. Behind every major twist and turn of history there is a social movement driven not by legal subterfuge and political compromise but unabashed truth, courage, and clarity.
There is no shortage of bad ideas in the pro-life movement. Here’s the most recent one: state “personhood” proposals. These proposals, drafted as either state constitutional amendments or state statutes, purport to recognize unborn children as constitutional “persons,” and are intended to challenge the Supreme Court’s holding in Roe v. Wade that the unborn child is not a “person,” as that word is used in § 1 of the Fourteenth Amendment. Failing that, they are intended to persuade the Court to overrule Roe and return the issue of abortion to the states.
Perhaps the weakest assertion put forth by Mr. Linton in his article is that “state personhood amendments … could overturn the entire body of law developed over the years regulating the practice of abortion. That is because, by definition, you cannot regulate what you prohibit.” Isn’t the goal of the pro-life movement to prohibit the practice of abortion? And if the state personhood amendment is as ineffectual as Mr. Linton predicts, and is simply thrown out at first glance, how would this affect our current laws, for how could laws deemed to be unconstitutional trump existing laws? And if they are found to be constitutional and therefore the amendment is enforced, why would a complete ban be a worse thing than the regulation of the lawful killing of children in the womb?
In 2006, Michigan became the first state to attempt to amend their laws to recognize the preborn child as a person for purposes of the state constitution. In reponse to opposition by several establishment pro-life organizations, Professor Charles Rice wrote this succint legal memo in support of the amendment.
When it comes to the unborn, however, we not only fail to protect them, we celebrate their destruction as a constitutional right. This is plainly wrong. The Personhood Movement seeks to remedy this injustice and to protect the unborn. It is the only pro-life strategy that offers a direct and immediate challenge to the tyranny of Roe v. Wade.’
Being attacked by the mainstream pro-life movement for adhering to its foundational principles can be discouraging for any pro-life activist. However, now, more than ever, a return to our foundational principles is the only long-term solution to the constitutional, political, and cultural crisis brought on by liberal secularism.
Personhood Strategy
We need a winning pro-life strategy
After 50 years of abortion on demand, it is time to rethink our pro-life strategies and examine the efficacy of the national pro-life movement.
“Insanity is repeating the same mistakes and expecting different results.”
– Albert Einstein
LEGAL STRATEGY MEMOS
Conforming to the Rule of Law: When Person and Human Being Finally Mean the Same Thing in 14th Amendment Jurisprudence
Dr. Charles Lugosi, LL.B., LL.M., M.B.E., S.J.D. (2006)
Science, history, and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of “person” under the Fourteenth Amendment…There can be no “rule of law” if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings.
Click here to read the entire memo.
Protecting Prenatal Persons: Does the 14th Amendment Prohibit Abortion?
Joshua J. Craddock (2017)
What should the legal status of human beings in utero be under an originalist interpretation of the Constitution? Other legal thinkers have explored whether a national “right to abortion” can be justified on originalist grounds. Assuming that it cannot, and that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey were wrongly decided, only two other options are available. Should preborn human beings be considered legal “persons” within the meaning of the Fourteenth Amendment, or do states retain authority to make abortion policy?
Click here to read the entire memo.
Unborn Children as Constitutional Persons
Gregory Roden, J.D. (2010)
The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. The states did exercise this power and held unborn children to be persons under the property, tort, and criminal law of the several states at the time Roe was decided. As an effect of the unanimity of the states in holding unborn children to be persons under criminal, tort, and property law, the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn persons. Furthermore, to the extent Justice Blackmun examined the substantive law in these disciplines, his findings are clearly erroneous and as a whole amount to judicial error. Moreover, as a matter of procedure, according to the due process standards recognized in Fifth Amendment jurisprudence of the Supreme Court, Roe v. Wade should be held null and void as to the rights and interests of unborn persons.
Click here to read the entire memo.
The Plausibility of Personhood
Professor Michael Stokes Paulsen (2012)
Is a living human embryo or fetus a “person” within the legal meaning of the Fifth Amendment and Fourteenth Amendment to the U.S. Constitution? Put somewhat differently, is the unborn human child—despite not yet being born—nonetheless constitutionally a “person” whom the state may not deprive of life “without due process of law” and to whom the several states owe a constitutional legal duty of “equal protection of the laws” from the private violence or wrongs of others, or the discrimination of the state? This, I submit, is a close, difficult, and exceedingly important constitutional question. The better answer—but by no means an incontrovertibly clear answer—is yes.
Click here to read the entire memo.
Re-examining Roe: 19th Century Abortion Statutes and the 14th Amendment
James S. Witherspoon, B.A., J.D. (1985)
In Roe v. Wade, the United States Supreme Court held that human fetuses are not “persons” protected by the Fourteenth Amendment, and states do not have a “compelling interest” in protecting the lives of human fetuses, sufficient under the Fourteenth Amendment to justify prohibition of abortion…The Court based these conclusions most fundamentally on its assertion of historical fact that the nineteenth-century state common law and statutory law of criminal abortion never manifested a recognition of the personhood of human fetuses. This assertion is fundamentally erroneous.
Click here to read the entire memo.
An American Tragedy: The Supreme Court on Abortion
Dr. Robert M. Byrn (1973)
Roe v. Wade is in the worst tradition of a tragic judicial aberration that periodically wounds American jurisprudence and, in the process, irreparably harms untold numbers of human beings. Three generations of Americans have witnessed decisions by the United States Supreme Court which explicitly degrade fellow human beings to something less in law than”persons in the whole sense.” One generation was present at Scott v. Sandford, another at Buck v. Bell, and now a third at Roe v. Wade. Are not three generations of error enough?
Click here to read the entire memo.
The Dred Scott Case of the 20th Century
Professor Charles E. Rice (1973)
The acceptance by society of what is essentially the Nazi ethic is neither progressive nor inevitable. The abortion trend, the legalization of the killing of innocents for convenience, can be reversed. We can begin that reversal by recognizing in our law the basic reality that as far as his right to live is concerned, the child in the womb is a person. We must affirm that innocent life is not negotiable. And we must reestablish the basic equality of all before the law. To hold now that certain human beings may constitutionally be defined as nonpersons, so as to subordinate their right to live to the discretion of others, is to reincarnate the evil doctrine of human slavery.
Click here to read the entire memo.
Abortion and the Constitution: The Need for a Life-Protective Amendment
Professor Robert A. Destro (1975)
Abortion, the right to privacy, the right to life-these topics have been in the public eye since the decisions of the United States Supreme Court in Roe v. Wade and Doe v. Bolton. These decisions have not settled the abortion controversy: it continues in Congress, in the courts, and in the media. The subject matter is complex and may be debated at many levels. However, without a focus or common ground of discussion, efforts toward resolution inexorably lead to more debate, more confusion, and ultimately, frustration and anger for the parties involved.
Click here to read the entire memo.
Rethinking the Pro-Life Strategy
Robert Muise, Esq. (2008)
Over the past year, debate and discussion over the direction of the pro-life movement has increased profoundly. National leaders of the movement, including Catholic leaders, have eschewed—and in some cases directly opposed—efforts to pass constitutional “human life amendments” at the state level. Instead of supporting such a strategy, they largely favor the current “incremental” approach, which offers no plan or promise of ending abortion in the foreseeable future. After 35 years of abortion on demand through all nine months of pregnancy, it is time to rethink pro-life strategy and the efficacy of the national pro-life movement.
Click here to read the entire memo.
Incrementalism vs. Personhood Debate
Debate at the Ave Maria Law School (2009)
Robert Muise of the American Freedom Law Center defends the Personhood strategy and Clarke Forsythe argues for incrementalism based on the virtue of prudence.
Prudence and Moral Clarity in the Quest for Personhood
Gualberto Garcia Jones, Esq. (2009)
The close relationship between the social conscience and representative democracy is at the heart of American and world history. Behind every major twist and turn of history there is a social movement driven not by legal subterfuge and political compromise but unabashed truth, courage, and clarity.
Click here to read the entire memo.
A Fool’s Errand: State Personhood Proposals (Pro-Life Establishment Arguments Against Personhood)
Paul Benjamin Linton, Esq. (2009)
There is no shortage of bad ideas in the pro-life movement. Here’s the most recent one: state “personhood” proposals. These proposals, drafted as either state constitutional amendments or state statutes, purport to recognize unborn children as constitutional “persons,” and are intended to challenge the Supreme Court’s holding in Roe v. Wade that the unborn child is not a “person,” as that word is used in § 1 of the Fourteenth Amendment. Failing that, they are intended to persuade the Court to overrule Roe and return the issue of abortion to the states.
Click here to read the entire memo.
A Defense of State Personhood Amendments and of Civility in the Pro-Life Movement
By Gualberto Garcia Jones, Esq. (2010)
Perhaps the weakest assertion put forth by Mr. Linton in his article is that “state personhood amendments … could overturn the entire body of law developed over the years regulating the practice of abortion. That is because, by definition, you cannot regulate what you prohibit.” Isn’t the goal of the pro-life movement to prohibit the practice of abortion? And if the state personhood amendment is as ineffectual as Mr. Linton predicts, and is simply thrown out at first glance, how would this affect our current laws, for how could laws deemed to be unconstitutional trump existing laws? And if they are found to be constitutional and therefore the amendment is enforced, why would a complete ban be a worse thing than the regulation of the lawful killing of children in the womb?
Click here to read the entire memo.
Professor Charles Rice on Personhood
Professor Charles E. Rice (2006)
In 2006, Michigan became the first state to attempt to amend their laws to recognize the preborn child as a person for purposes of the state constitution. In reponse to opposition by several establishment pro-life organizations, Professor Charles Rice wrote this succint legal memo in support of the amendment.
Click here to read the entire memo.
An Apologia for Personhood
Stephen M. Crampton, Esq. (2012)
When it comes to the unborn, however, we not only fail to protect them, we celebrate their destruction as a constitutional right. This is plainly wrong. The Personhood Movement seeks to remedy this injustice and to protect the unborn. It is the only pro-life strategy that offers a direct and immediate challenge to the tyranny of Roe v. Wade.’
Click here to read the entire memo.
Personhood Contra Mundum
Gualberto Garcia Jones, Esq. (2015)
Being attacked by the mainstream pro-life movement for adhering to its foundational principles can be discouraging for any pro-life activist. However, now, more than ever, a return to our foundational principles is the only long-term solution to the constitutional, political, and cultural crisis brought on by liberal secularism.
Click here to read the entire memo.
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