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Pre-born Children as Constitutional Persons

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The featured article, by legal scholar Gregory J. Roden, discusses the question whether unborn children are “persons” within the language and meaning of the Fifth and Fourteenth Amendments. Because there is no constitutionaltext explicitly holding unborn children to be, or not to be,“persons,” his examination is founded on the historical understanding and practice of the law, the structure of the Constitution, and the jurisprudence of the Supreme  Court.

In Roe v. Wade, the state of Texas argued that “the fetus is a ‘person’within the language and meaning of the Fourteenth Amendment.”The Supreme Court responded in its majority opinion that “[i]f this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.” Unfortunately, the majority’s legal analysis arrived at the opposite conclusion, “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.” It is the majority’s legal analysis that Mr. Roden examines in fine detail. First, Mr. Roden points out that the Constitution does  not confer upon the federal government the power to grant or deny “personhood” under the Fourteenth Amendment. Rather, the power to recognize or deny unborn children as holders of certain statutory and common law rights and duties has historically been exercised by the states.

The Roe opinion and other Supreme Court cases implicitly recognize this function of state sovereignty. Second, he demonstrates that, at the time Roe was decided, the states had exercised this power and held unborn children to be persons under their criminal, tort, and property law. Because of the unanimity of the states in holding unborn children  to be persons under criminal, tort, and property law, Mr. Roden argues that the text of the Equal Protection Clause of the Fourteenth Amendment compels federal protection of unborn children as persons. Furthermore, he shows that to the extent the Court examined the substantive law in these disciplines, its legal conclusions were not warranted.

Finally,  Mr.Roden illustrates the inconsistency of federal statutory law with Roe, in that it also treats unborn children  as persons by recognizing their eligibility for federal entitlements. Due to the length of the featured article, no other material is included in this edition.

James Bopp, Jr., J.D.
EDITOR-IN-CHIEF
Spring 2010