One of the claims that appears to be important to the anti-abortion position is that embryos have rights. It may then be presumed that when the rights of the embryo are in conflict with the rights of the putative mother, some balanced resolution must be reached. Since abortion ends the existence of the embryo and, hence, any ability of the embryo to exercise any rights, it would seem that any reasonable balance precludes abortion entirely. In fact, some exponents argue that the rights of a pregnant woman can be quite significantly limited, in order to ensure that she carries her pregancy to term. If, however, embryos lack rights, then no such balance need be struck, and the regulation of abortion can proceed on other grounds.
The rights of citizens and residents of the United States are specified, or at the least adumbrated, in the Constitution of the United States and a number of the amendments thereto. I have attached the entire text of the Fifth Amendment, and the first section of the Fourteenth Amendment, as containing passages relevant to the instant controversy. One of the notable points is that, while some of the rights or privileges alluded to in the Fourteenth Amendment belong to citizens of the United States, while the equal protection of the laws is extended to all persons “within its jurisdiction.”
In other essays, I have argued that an embryo is not, on the face of it, a human being, and that the two conditions are mutually exclusive. That is, a human being isn’t a human being until it has been born, while an embryo ceases to be an embryo when it is born. If find that the language of the Fourteenth Amendment suggests that the same position is held by the Constitution. The amendment states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The plain meaning of this statement is that one is neither a citizen nor a person until after one has been born. Since all of the rights granted by the Constitution accrue to persons, and some only to citizens, it is obvious that there are no rights under the Constitution accruing to an embryo.
I think a simple illustration will make this clear. A citizen is a person “born or naturalized in the United States.” This principle, which is known as the jus soli, the “law of the soil,” means that the fundamental criterion for American citizen is birth in this country. It is well known that a pregnant Mexican citizen may enter the United States, have the baby in California or New Mexico, and thus gain a claim to U.S. citizenship for the child. But birth is a critical element in this scenario. A German citizen woman may come to the United States, become pregnant here, spend eight months of her pregnancy in the United States, and lose any claim to U.S. citizenship for the child by giving birth in Germany. In other words, no claim to citizenship is accrued during time spent as an embryo in the United States.
The critical Constitutional dividing line between person and non-person, eligibility for citizenship and lack of eligibility, is the actual birth. Thus, prior to birth, an embryo has no Constitutional rights, although, immediately upon being born alive within our boundaries, a baby acquires certain rights.
The rights of citizens and residents of the United States are specified, or at the least adumbrated, in the Constitution of the United States and a number of the amendments thereto. I have attached the entire text of the Fifth Amendment, and the first section of the Fourteenth Amendment, as containing passages relevant to the instant controversy. One of the notable points is that, while some of the rights or privileges alluded to in the Fourteenth Amendment belong to citizens of the United States, while the equal protection of the laws is extended to all persons “within its jurisdiction.”
In other essays, I have argued that an embryo is not, on the face of it, a human being, and that the two conditions are mutually exclusive. That is, a human being isn’t a human being until it has been born, while an embryo ceases to be an embryo when it is born. If find that the language of the Fourteenth Amendment suggests that the same position is held by the Constitution. The amendment states that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The plain meaning of this statement is that one is neither a citizen nor a person until after one has been born. Since all of the rights granted by the Constitution accrue to persons, and some only to citizens, it is obvious that there are no rights under the Constitution accruing to an embryo.
I think a simple illustration will make this clear. A citizen is a person “born or naturalized in the United States.” This principle, which is known as the jus soli, the “law of the soil,” means that the fundamental criterion for American citizen is birth in this country. It is well known that a pregnant Mexican citizen may enter the United States, have the baby in California or New Mexico, and thus gain a claim to U.S. citizenship for the child. But birth is a critical element in this scenario. A German citizen woman may come to the United States, become pregnant here, spend eight months of her pregnancy in the United States, and lose any claim to U.S. citizenship for the child by giving birth in Germany. In other words, no claim to citizenship is accrued during time spent as an embryo in the United States.
The critical Constitutional dividing line between person and non-person, eligibility for citizenship and lack of eligibility, is the actual birth. Thus, prior to birth, an embryo has no Constitutional rights, although, immediately upon being born alive within our boundaries, a baby acquires certain rights.
Due Process in the Fifth and Fourteenth Amendments
Article [V]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article XIV
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
Article [V]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article XIV
Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
1 comment:
Glenn,
Naturally I'm not convinced by your argument. The XIV Amendment, as quoted by you, says:
"Section 1. 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."
So clearly if a person is not born in the United States or naturalized in the United States they are not a citizen of the United States. If one reads this section strictly one can certainly support the argument that an unborn child is not a US citizen.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
The second part that you quoted discussing not abridging citizen's rights initially (so we can ignore that for our not citizen fetuses). The second part however, discusses the States not depriving any person of "life, liberty, or property." Nor deny any person of within its jurisdiction equal protection of the laws. It is not clear to me that a fetus, especially a late term one, is not in fact a person. Is there another place in the Constitution where person is defined directly or by inference? It seems you would need to have this clearly delineated to conclude your case.
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