Unborn Persons, Incrementalism & the Silence of the Lambs

Article excerpt

Paul Benjamin Linton-in his recent Human Life Review article, "Sacred Cows, Whole Hogs & Golden Calves" (Summer 2007)-writes about the efficacy of "incrementalism," which, he says, "seeks to reduce the number of (and perceived need for) abortions, while simultaneously chipping away at the foundation of Roe v. Wade until the Supreme Court is prepared to discard whatever remains of Roe." Linton sees incrementalism as being opposed to the aims of the "purists," who want "nothing short of an outright prohibition of all abortions." To accomplish this goal, Linton writes, purists seek to establish the "personhood" of unborn children through either "a Supreme Court decision or a constitutional amendment." Linton has two criticisms of the "purist" approach. The first is that he believes purists "will not act to save a single life unless they can save all." The second addresses the issue of personhood itself: "The notion that the Supreme Court can be forced to recognize that, as a matter of scientific and medical evidence, the unborn child is a human being-i.e., that it is alive, developing, and genetically human-is equally naïve."

Let me say at the outset, I thank Mr. Linton for his thoughtful article and I appreciate all the efforts incrementalism has made to save the lives of unborn children-any friend of an unborn person is a friend of mine. Yet it seems that Linton has come to see incrementalism as necessarily opposed to the declaration of personhood-when in fact, I believe it can be shown that incremental legal decisions in favor of unborn children are designed to lead to the very same result. If what incrementalism hopes for is "the day when Roe v. Wade is overturned and the states (and the federal government) have the authority, once more, to extend the protection of the law to the most vulnerable members of the human family," then incrementalism, too, has as its ultimate goal the recognition of the personhood of the unborn.

I believe the pro-life movement ought to realize by now that it was being baited by Justice Potter Stewart, when he suggested-in Roe's oral reargument-various theological, philosophical, or medical approaches to "personhood." When Justice Harry Blackmun adopted a similar tack in the Roe opinion, we swallowed that bait hook, line, and sinker. It is this approach Linton (and others) find fruitless, and rightfully so. I believe it is time for a more radical approach: looking in a dictionary.

Dictionaries will of course tell us that "person" is synonymous with human being, but they also give us a legal definition-which is more appropriate to use in a discussion of the constitutional status of unborn children. As an example, let's take one such legal definition of "person" from an Internet dictionary: "[O]ne (as a human being, a partnership, or a corporation) that is recognized by law as the subject of rights and duties."1 This definition brings out exactly what persons do in a court of law-they assert their rights and/or demand the duty of other persons to properly observe such rights. Indeed, this was the definition of person that appeared in the popular law dictionary, Black's Law Dictionary, at the time Roe v. Wade was written,2 and in the authoritative Oxford Universal Dictionary.3

Let's look at some examples of the above definition in action in the state of Minnesota. There, a district attorney may seek the conviction of a defendant for the murder of a 28-day-old embryo, as occurred in State v. Merrill (1990).4 A plaintiff's attorney may seek damages from a defendant who was negligent in the death of a stillborn child, as in Verkennes v. Corniea (1949).5 And, in a probate proceeding, if an unborn child is an heir to the decedent, an attorney may have a guardian ad litem appointed to represent the child.6 These examples are in accordance with the historical understanding of the word "person," as Chief Justice Marshall stated in United States v. Palmer (1818): "The words 'any person or persons,' are broad enough to comprehend every human being. …