1282 CALIFORNIA LAW REVIEW [Vol. 63:1250 standing.158 Since it was never a right recognized by the common law, it cannot be considered to be a ninth amendment right retained by the people. The newly created right to procure an abortion is the creature of the substantaive due process arguments and erroneous interpretations of history relied upon by the Court in Roe; it is not a right which may be characterized as "so rooted in the traditions and conscience of our people to be ranked as fundamental.”159 6. The Unborn as "Persons" within the Fourteenth Amendment In the course of identifying the factors which went into the Supreme Court's resolution of the access question in favor of legal abortion much has been made of the fact that the question's ultimate resolution depends in its entirety upon whether or not a pregnant woman's interest in privacy outweighs the interest of her unborn offspring in remaining alive. Clearly the issue cannot be resolved by stating that "the court does not postulate the existence of a new being with federal constitutional rights at any time during gestation."160 The Supreme Court recognized the insufficiency of this formulation when it held that the resolution of the access question depended entirely upon the validity of the postulate.161 The central legal issue in Roe v. Wade was whether or not the unborn are "persons" protected by the fourteenth amendment.162 The Court noted that if the unborn are "persons" Jane Roe's argument in favor of legalized abortion collapses, "for the fetus' right to life is then specifically guaranteed by the Amendment."168 If, as the Court found, the unborn are not "persons", the state's interest in protecting unborn life would not be sufficiently "compelling" to outweigh the interests of the woman. 164 Given the importance of resolving this issue, and the fact that the matter was one of first impression,1 165 it is unfortunate that 158. To Professor Means, proof that the common law permitted unrestricted access to abortion was sufficient to support the contention that this "freedom" was subsumed within the ninth amendment's guarantee of unenumerated rights. See Means, supra note 74, at 336. The "proof" offered by Professor Means, however, was his erroneous interpretation of The Twinslayer's Case discussed in the text accompanying notes, 53-75 supra. 159. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). 160. Doe v. Bolton, 319 F. Supp. 1048, 1055 n.3 (N.D. Ga. 1970), aff'd, 410 U.S. 179 (1973). 161. Roe, 410 U.S. at 156-57. 162. Id. 163. Id. at 162-63. 164. Id. 165. The fact that several lower courts reached the issue in challenges to specific state abortion laws is not material. The ultimate question whether the unborn are protected from legislatively or judicially sanctioned destruction by the due process clauses of the fifth and fourteenth amendments could only arise in the context of the 1975] ABORTION AND THE CONSTITUTION 1283 the Court's opinion does not contain a thorough analysis of the considerations upon which its conclusions were based. When it held that the unborn are not "persons" the Court rested its decision on two factors which, taken together, convinced it that the right to life does not exist prenatally: All this [referring to a discussion of other constitutional usages of the word "person"] together with our observation . . . that throughout the major portion of the 19th Century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person" as used in the Fourteenth Amendment does not include the unborn,166 Since the Court's observations concerning the common law have been found to be unsatisfactory as a basis for constitutional adjudication, it is necessary to examine the Court's first observation-that the terms of the Constitution do not admit of prenatal application-in order to evaluate the Court's ultimate conclusion. a. Constitutional Usage of the Word "Person" Although the Constitution makes liberal use of the word "person" it is not defined. The Court recognized this fact at the outset of its inquiry into the word's meaning.167 A thorough examination of the varied usages of the word throughout the text of the Constitution leaves little doubt that the meaning of the word is generally derived from the context in which it is used. The Court's inability to find other than a postnatal application for the word bears witness to this fact, since the Court might have professed an equal inability to find more than a few references to "person" which have any other than an adult application. 168 If the Court was trying to establish that constitutional usage of the word in sections other than the due process clauses of the fifth and fourteenth amendments precludes any possible prenatal application, it did not support the proposition by citing the reader to the constitutional passages in which the word is employed. The fact is that the Constitution does not define the word. abortion controversy. The law in the only other area relevant to the question of prenatal rights, property, was already settled in favor of the unborn. See Louisell, Abortion, the Practice of Medicine, and Due Process of Law, 16 U.C.L.A. L. REV. 233 (1969). 167. Id. See generally address by Edward T. Lee to the Gary, Indiana Bar Association, "Should Not the 14th Amendment to the Constitution of the United States be Amended?" (November 20, 1936) (arguing that the fourteenth amendment should not include corporations). 168. Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973) [hereinafter cited as Ely]. 1284 CALIFORNIA LAW REVIEW [Vol. 63:1250 Two examples-the apportionment clause169 and the twenty-second amendment-should be sufficient to illustrate the Court's illogical approach to the difficult problem posed in Roe v. Wade. The apportionment clause directs that both representatives and direct taxes be allocated by "adding to the whole Number of free Persons, and excluding Indians not taxed, three-fifths of all other Persons,"170 such enumeration to be made every 10 years "in such Manner as [Congress] shall by Law direct." Although it has been argued that this clause furnishes conclusive proof that the unborn are not persons, 171 the argument can best be characterized as "grabbing at straws." The Court was content to note that it was "not aware that in the taking of any census under this clause, a fetus has ever been counted."172 Two facts should be noted in determining whether the apportionment clause and the Court's use of the clause are relevant to the meaning of "person" for purposes of due process. First, the clause directs that a census shall be taken every 10 years “in such manner as [Congress] shall by law direct," a fact which the proponent of its conclusive effect apparently neglected to note.173 Although Congress has never done so, it would be neither irrational nor unconstitutional for it to direct that account also be taken of the unborn whenever the census-taker is made aware of their existence. The fact that Congress has never done so is irrelevant. The due process question cannot reasonably be made to turn on so specious an argument. Second, if being counted in the decennial census is a primary requisite for personhood it is difficult to understand how a corporation may be a "person" within the meaning of the fourteenth amendment. This writer is not aware that in any census a corporation has ever been counted. If the constitutional usage of "person" is too inflexible to include the unborn, it cannot reasonably be thought flexible enough to include a corporation. Yet it is a fact that the concept of corporate personhood was accepted by the Court without argument in Santa Clara County v. Southern Pacific Railroad Co.174 The holding regarding the unborn can 169. U.S. CONST. art. I, § 2, cl. 3, 4. 170. The apportionment clause was changed by Section 2 of the fourteenth amend The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does. Id. at 396. 1975] ABORTION AND THE CONSTITUTION 1285 hardly be said to rely upon the intent of the Framers; most relevant evidence seems to point in the opposite direction. The second example of the Court's illogical approach to the problem is the twenty-second amendment. By its terms, the amendment prohibits any "person" from being elected to the office of President more than twice. It is apparent that the word "person" as used here derives its meaning from the context. If one were to accept the Court's analytical scheme in a future case where the meaning of the word were in question, it might appear that "persons" are only those who are natural-born citizens who have attained the age of 35.175 Admittedly the foregoing are extreme examples, but they are not the only ones which can be employed to show that the Constitution itself is not so restrictive as the Court would have one believe.178 A reading of the Constitution as a whole makes it clear that the only clauses in which context does not supply the meaning of "person" are the due process clauses of the fifth and fourteenth amendments. The definition of the word in those contexts is critical. The two clauses stand as the constitutional bulwark against unwarranted governmental infringement of the inalienable rights to life, liberty and property. Thus, even if it be assumed that most constitutional usage of "person" in sections other than the fourteenth amendment does not apply to the unborn, it does not follow that the same must hold true for purposes of due process. After all, "it is a constitution we are expounding." and "[i]ts nature, therefore, requires that only its great outlines be marked;"177 the rest must be determined by reference to the nature of the objects to be protected. The existence of fundamental rights cannot be made to turn upon semantic niceties. It should be remembered that in Roe the Court invalidated a Texas law which had been construed to be protective of the unborn.178 The lower court decision was based upon the premise that the unborn are human beings.179 The Court did not reject this proposition. The ultimate issue before the Court, therefore, was whether the Constitution forbids state protection of individuals found to be human beings. 180 The question to be answered by the Court was this: absent some affir 175. U.S. CONST. art. II, § 1, cl. 5. 176. See also U.S. CONST. art. I, § 2, cl. 2, and amend. XIV, § 3. 177. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1817). 178. See Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App. 1971), vacated and remanded, 410 U.S. 950 (1973) (inconsistent with Roe). 179. Id. at 914. 180. The Court did not offer any citations or other authority for its unqualified statement that Texas could not interfere with a woman's choice of an abortion by adopting "one theory of life." Roe, 410 U.S. at 162. In fact, the opinion offers no clue whatsoever as to why the Constitution would forbid such a course of action. 1286 CALIFORNIA LAW REVIEW [Vol. 63:1250 mative evidence that the authors of the fourteenth amendment intended to exclude the unborn, can it be assumed, for the purpose of invalidating state protection of what is a fundamental right, that they indeed intended to exclude the unborn?181 Although it purported to give great weight to contemporary thought in the pre-fourteenth amendment period, the Court did not address the question. Independent analysis, however, reveals that the correct answer is "No". b. The Fourteenth Amendment—A Historical Perspective Few would argue with the proposition that the primary inalienable rights protected by the due process clauses of the fifth and fourteenth amendments are human rights.182 Similarly, the life protected by the clauses is human life. It follows then that the individual possessing that biological force known as human life, a human being, is the object of the amendments' protection-a person. Such an analysis is by no means a new one. In 1911, Sir Fredrick Pollock observed that "[t]he person is the legal subject or substance of which rights and duties are attributes. An individual human being, considered as having such attributes, is what lawyers call a natural person.' The remaining question, however, is the one which the Court avoided, in Roe v. Wade: does the language or the history of the fifth and fourteenth amendments permit (or require) that a distinction be drawn between the "human being" and "human person"? 183 The Court's justification for what must be taken as an affirmative answer to this question rests upon its observation that historically the 181. Boyd v. United States, 116 U.S. 616 (1885): [C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction of them deprives them of half their efficacy, and leads to gradual depreciation of the rights as if it consisted more in sound than in substance. Id. at 635. 182. See Address by Congressman John Bingham at Bowerstown, Ohio, August 24, 1866, in Cincinnati Commercial, Aug. 27, 1866, at 1, col. 1, 3: Look at that simple proposition. No state shall deny to any person, no matter 183. F. POLLOCK, A FIRST BOOK OF JURISPRUDENCE 111 (3d ed. 1911), quoted in, Means, supra note 70, at 409 n.175. |