By David Bjornstrom, Esq. — What is a person? We need an answer to the question of personhood for any intelligent discussion of abortion, because all human persons have a fundamental right to life.
History and common sense tell us that persons include all human beings. The modern sciences of genetics and prenatal development fill in the details, showing that pre-born babies are fully human from the moment of conception.
Abortion advocates insist that pre-born babies should not be treated as legal “persons,” especially at early stages of pregnancy, but they are unable to define the concept of personhood themselves or identify a non-arbitrary stage of prenatal development that would begin one’s personhood. They prefer not to talk about the baby at all and focus almost exclusively on the pregnant woman’s desires and the burdens of motherhood.
The classical definition of person from the time of Aristotle was “an individual substance of a rational nature.” The word rational distinguishes persons from non-rational animals, plants, and inanimate objects. The word nature refers to the underlying essence of a thing. So a person is still a person, whether he or she happens to be awake or asleep, sane or insane, elderly or newly conceived.
Americans understood personhood in terms of humanity in 1868 when they adopted the Fourteenth Amendment to our Constitution, which guarantees all persons the right to life and equal protection. Webster’s 1865 Dictionary of the English Language defined person to include “a living human being” or “an individual of the human race.”
In fact, the wording of the Fourteenth Amendment itself suggests that Constitutional personhood applies to the pre-born. The right to citizenship is expressly limited to persons who are already born (or naturalized) while the rights to life, liberty, property, and equal protection are extended to “any person,” not limited to those already born.
The Supreme Court, in the 1968 case of Levy v. Louisiana, defined legal persons under the Fourteenth Amendment as those who are “humans, live, and have their being.” In fact, Americans throughout our history held this same basic view of personhood until the Supreme Court completely mangled personhood in 1973 to justify a supposed right to abortion under the now-discredited Roe v. Wade case.
Enter modern science
The world has always known intuitively—and from basic science, philosophy, and religion—that pre-born babies are human, and abortion is wrong. This has been confirmed now in amazing detail by modern biology and genetics, which reveal the fully human personhood of all pre-born babies from the moment of conception.
These scientific fields show us that every pre-born child is genetically distinct from its mother and father, with its own unique human DNA. Each human’s DNA is one that has never existed before and will never exist again, with all of the building blocks necessary to make up an individual person. Pre-born babies grow and develop just as born children do after birth because they are fully human from the beginning.
Constitutional personhood and history
There was a general consensus among Americans when the Fourteenth Amendment was adopted that abortion kills a human being (a person), suggesting that the right to “life” and “equal protection” was assumed to apply to pre-born persons. Justice Alito’s opinion in the Dobbs case, overruling Roe v. Wade, gives a detailed history of anti-abortion laws that existed in every state at the time of the Fourteenth Amendment, up until Roe. While his purpose was simply to disprove any affirmative right to abortion, he shows in the process that Americans generally believed in an affirmative right to life for the pre-born.
Advocates for legal abortion suggest that pre-born children were not meant to be included under the Fourteenth Amendment because there is no specific definition of “person” in the Constitution, and some of the states at that time did not give equal legal status to the pre-born. However, a separate definition of person would have seemed unnecessary to 19th century Americans who understood the word person to apply to all human beings. And despite some differences among states, Justice Alito’s historical survey shows that, by 1868, the vast majority of states criminalized abortion at all stages of pregnancy.
Abortion advocates also dispute the personhood of early-stage humans because some of the states in the late 18th and early 19th centuries imposed lesser penalties for abortions before “quickening,” when the baby’s first movements are felt in its mother’s womb. However, these quickening laws originated in earlier historical times, well before modern stethoscopes and ultrasound machines, when quickening was often the best proof that a baby was alive. In any event, the quickening distinction was abandoned by the 19th century, around the time of the Fourteenth Amendment. Americans at the time of the Fourteenth Amendment clearly viewed pre-born babies as human beings and all human beings as persons.
Constitutional personhood is not limited by 19th century science
Regardless of whether Americans in 1868 understood that all pre-born babies are persons, the Fourteenth Amendment gives a Constitutional right to life and equal protection to all persons.
The Supreme Court’s job is to interpret what the writers of the Constitution and those who voted to adopt it meant by the words they used. After all, laws in a democratic society derive their legitimacy from the voters and their representatives debating and approving specific words. Once adopted, the words mean just what they say, but that does not relegate the Court to a time machine or bind the Court to follow antiquated science. The meaning of person under the Fourteenth Amendment does not change, even though our understanding of personhood is enhanced by modern science, proving that it applies to all pre-born humans from the moment of conception.
This is no different than other Constitutional rights that apply to an evolving world. For example, free speech under the First Amendment protects movies and internet communication that did not yet exist in the 18th century when the First Amendment was adopted. The Second Amendment right to bear arms applies to modern weapons that were not yet in existence. The meaning of the text does not change, even though it is applied to new circumstances or new information. So, too, the Fourteenth Amendment applies to all human beings, including the pre-born, whether or not those individuals were recognized as members of the human family when the Fourteenth Amendment was adopted.
Respect for modern science does not make the Constitution a living document
This does not mean that the Constitution is a living document, an argument used by activist judges to twist the Constitution to achieve by judicial fiat what the document does not say. “Living Constitution” is a ruse for judges to promote their personal goals for contemporary society without going through the arduous process of a Constitutional Amendment. The fact that the Constitution contains explicit requirements for any amendments, intentionally difficult to satisfy, proves that it was not meant to be changed any other way.
Proper interpretation, unlike the living Constitution theory, adheres to the words of the Constitution that were formally and methodically adopted by the people and their representatives. However, this does not keep us from recognizing that those words may apply over time in ways that were not originally foreseen in order to account for new insights from science.
In Dobbs, the court did not fully address the personhood of pre-born babies—perhaps afraid of the political fallout—but modern science has spoken. We can be on the right side of history by recognizing that pre-born babies from the moment of conception are fully human persons both morally and legally under the protection of the Fourteenth Amendment.
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David Bjornstrom, Esq., is a member of the U.S. Supreme Court bar and a retired Santa Rosa, CA-based attorney with 38 years of experience specializing in business, estate, and tax law. He serves in various pro-life and elder-focused outreach ministries. David and his wife have six children, including two adopted from China, and 16 grandchildren.