Constitutional and Other Persons

Abstract

In Roe v. Wade2 the Supreme Court affirmed three propositions about the status of unborn children as human persons. The first proposition was that the unborn are not constitutional persons. The Court asserted that the word “person” as used in the Fourteenth Amendment does not include the unborn (156). This conclusion was important because, as the Court plainly stated, the case for abortion liberty would otherwise, “collapse..., for the fetus’s right to life would then be guaranteed specifically by the Amendment” (156–67). The Court concluded, more specifically, that if the unborn were recognized as constitutional persons, only abortions to save a pregnant woman’s life could be consistent with equal respect for the life of the unborn.3 Writing for the Roe Court, Justice Blackmun treated the constitutional-person question as one about past legal usage, as an inquiry about a technical term whose meaning in Roe depended upon how it was understood in the nineteenth century. He considered just two kinds of historical evidence