The Law and Philosophy of Personhood: Where Should South Dakota Abortion Law Go from Here?

By Pons, Brendan F. | South Dakota Law Review, Spring 2013 | Go to article overview

The Law and Philosophy of Personhood: Where Should South Dakota Abortion Law Go from Here?


Pons, Brendan F., South Dakota Law Review


The philosophical concept of personhood is underappreciated in political and legal discourse. However, the manner in which individuals view personhood affects not only human interaction with the world but also who receives legal rights and protections. In particular, the concept of personhood significantly impacts the issue of abortion, namely, embryos and non-viable fetuses must be defined as non-persons in order for abortion to be legal. According to Roe v. Wade, a seminal case in United States' abortion jurisprudence, an embryo or fetus is not a constitutional person in the context of the Fourteenth Amendment. However, while courts and scholars continually wrestle with determining the boundaries of constitutional personhood, recent South Dakota legislation has been geared toward changing abortion law. In light of its importance to current legal issues, legal scholars and practitioners should critically and carefully examine the concept of personhood in the context of the abortion debate. The question of embryonic and fetal personhood is central to philosophy, morality, as well as the United States Constitution and must be extensively considered and explored by legal practitioners, legal scholars, and courts.

I. INTRODUCTION

The concept of personhood's impact on abortion law was highlighted in Roe v. Wade (1) when the United States Supreme Court noted, "[i]f this suggestion of personhood is established, the ... case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." (2) Regardless, the Supreme Court has abstained from positing a legal theory or criterion for personhood, as Justice Blackmun asserted:

   We need not resolve the difficult question of when life begins.
   When those trained in the respective disciplines of medicine,
   philosophy, and theology are unable to arrive at any consensus, the
   judiciary, at this point in the development of man's knowledge, is
   not in a position to speculate as to the answer. (3)

At the time of the Roe decision, the Supreme Court focused on theological writings, common law, and medicine, while ignoring philosophical and bioethical literature. (4) This approach of bracketing personhood, (5) however, is unsustainable; legal policy analysis needs to examine carefully opposing worldviews in order to prevent undesirable consequences due to unjustified dogmatism. (6) More in-depth public discourse concerning abortion, life, and personhood is necessary because current public discussion has failed to address the importance of personhood in the abortion debate. (7)

At first blush, exploration of the concept of personhood seems to be a purely intellectual endeavor; however, it has increasingly become a heated topic of political debate. (8) Although personhood is an important philosophical notion, it is also legally significant because it is useful in determining people's protected rights under certain laws. (9) Though fetal personhood is not the sole legal factor in determining abortion's legality, (10) it is important because the question of when life begins determines basic constitutional guarantees. (11) Therefore, applying personhood to the law is a basic constitutional question; whether prenatal humans qualify as constitutional persons is determinative of any constitutional protections they may have, including the rights to life, liberty, and property, and whether they should have equal protection under the laws of the United States. (12)

Though pivotal to jurisprudence, the body of personhood law is fragmented, (13) contradictory, (14) as well as "fraught with deep ambiguity and significant tension...." (15) While abortion and personhood are moral questions commonly left for individual judgment and belief, clear public dialogue is necessary due to its widespread legal ramifications. (16) Because courts have addressed personhood by looking at the consequences on a case-by-case basis, no coherent legal doctrine or criteria addresses present problems or provides guidance for future issues of personhood as technology develops. …

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