The Constitution and Personhood

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.

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.

Mighty Oaks from Tiny Acorns Grow

In a previous essay, I discussed how everyone knows that chickens and eggs are different, even though eggs may develop into chickens. When we confuse the potential to become something with being that thing itself, this is called the “genetic fallacy.” Another example should clearly illustrate the workings of this fallacy.

As everyone knows, acorns are the fruit of oak trees. Even the scrub oak we have in the canyons around Colorado Springs produce acorns, though they’re small acorns, coming as they do from trees so small they really count as brush. An acorn will, under the right circumstances - given a nice patch of soil, sufficient water and sunlight, and if not disturbed by greedy squirrels or other rodents - grow into an oak tree. Now, a lot of them don’t grow up to be full-grown, because they compete for space and nutrients, or because droughts happen, or maybe because deer eat the little seedlings. And that illustrates one aspect of the genetic fallacy: one reason that the potential to develop into something is not the same as being that thing is that the development is not inevitable.

We can also talk about how we value things differently, even though one has the potential to turn into the other. If your neighbor has a stand of oak trees, 60 or 80 feet high, and with nice, thick foliage, that adds a lot of value to his lot. If you go over and cut one of those trees and take the wood home to your fireplace, you’re going to be guilty of theft or, at least, a civil tort. (In California, I recall hearing, there are triple damages for killing someone’s trees.) On the other hand, if you go walking down his sidewalk in the fall, when it’s strewn with acorns, you can step on those acorns and destroy them without fear of any negative consequences (unless you slip and fall): acorns are not valuable.

One way to put it is that an oak tree (or its owner) has a right against wanton destruction. And that means that other people have an obligation not to destroy the oak tree. Acorns have no rights, and people aren’t obliged to respect them. I suppose you might say that trees, like people, grow into their rights. And there’s nothing strange about asserting that a fetus doesn’t get all the rights of a living human being, just because it has the potential to turn into one. A living child doesn’t have all the rights of an adult human being, even though it, too, has the potential to become one.

This is the genetic fallacy at work. In the area of abortion, when someone asserts that a conceptus, an embryo, a fetus, is a “human being,” there is some equivocation going on. Certainly, a fertilized human egg may have the potential to develop into a human being. It is not, however, a human being at the moment of conception, and it doesn’t have the rights we expect a human being to have.

The Chicken and the Egg

There is an ancient riddle about which came first, the chicken or the egg. This riddle has become proverbial as a marker for situations in which it is impossible to state with certainty which of two events caused the other. “It’s a chicken and egg situation,” they say. But this is not about that riddle. For the purposes of this brief essay, the egg comes first. The egg comes before the chicken, because it is the egg which must develop into the chicken.

I don’t eat fried chicken much any more: too much cholesterol. It’s really too bad that I have to watch my diet that way, because I grew up on my mother’s fried chicken, and it was really good. I remember loving fried chicken when my mother would cook it up for Sunday dinner. I would have been surprised - no, I would have been shocked - if I had sat down to the table, expecting a platter of golden-brown fried chicken, and been handed a bowl of scrambled eggs instead. I think most of you would have been disappointed, and even if you like scrambled eggs better than chicken, you surely know the difference.

We all know the difference between a chicken and an egg. They look different, they act differently, and they certainly taste different when they’re cooked. And yet, according to some people, there’s no difference between a chicken and an egg. They’ll tell you that an egg has all the DNA of a chicken, and that an egg, once fertilized, will certainly become a chicken. And isn’t that the same thing? Well, no. If Wendy’s handed out fried-egg sandwiches to people who ordered their Crispy Chicken sandwiches, they’d have a riot on their hands.

There was an essay in the Sunday Gazette here in Colorado Springs stating that very thing, but using people instead of chickens as an example. There’s a ballot measure here to recognize embryos as legal persons as soon as conception occurs, and we’ll have to vote on that November 4. One of the arguments used in favor of the initiative is that embryos are people, because they have all the DNA of a human being, so they should count as human beings themselves.

Now, as soon as you think about chickens and eggs, and realize that a fetus is the equivalent of an egg for a mammal, you’ll realize that embryos and fetuses aren’t people. They’re potential people, and, under the right circumstances, in about nine months, they’ll turn into real, independent people. But there’s nothing certain about it. Just as many eggs end up as omelettes, instead of turning into frying chickens, about half of all concepti spontaneously abort. All that DNA is necessary to make a human being, but it isn’t sufficient. There’s a lot more to being a human being than just having the right set of chromosomes.