What does respect for human life in the Twenty-first Century require of us? When we consider the controversial bioethical debates between those who believe in the sanctity of life of the "unborn," (1) and those who do not, it may require expanding our concept of what counts as human life. The Supreme Court has failed to take a position on when human life begins. How can law respect human life without understanding when a new human life is created?
In addressing the question of whether the unborn human being is a "person," I contend there should be no distinctions in law and philosophy between human beings and persons and that human beings are endowed at creation with an inalienable right to life. This inalienable natural fight cannot be conferred because it is the common heritage of all human beings that we all are created equal. The current American constitutional doctrine of classifying the unborn as "separate and unequal" is immoral and unjust. Thus, there is a moral imperative to confer the status of constitutional personhood upon the unborn, as an expression of society's rejection of inequality and the discriminatory treatment of the unborn as biotechnological subjects in Twenty-first Century America.
This article assumes that it is immoral and unethical to take the life of an innocent human being, even if domestic law sanctions acts such as abortion and contraception. It further assumes that unborn human beings are by their very nature innocent, even if their lives were created because of culpable criminal conduct, such as rape or incest. This article also assumes that it is morally unacceptable for one human being to enslave or experiment upon another, even if that other person is an unborn human being and is not a constitutionally legally protected person.
First, this article will discuss the issue of abortion, as it is at the core of the moral debate concerning the constitutional depersonalization of the unborn. Second, this article will discuss how abortion is repugnant to and in conflict with the core values of liberal equality. Third, this article will review how philosophers use the device of depersonalization to justify abortion and to establish a new class of "separate and unequal" human beings in an attempt to morally justify the non-consensual use of embryos as biological subjects. Fourth, this article will briefly survey international ethical and legal standards that conflict with abortion. Fifth, this article will illustrate how moral questions plague scientific developments in cloning, embryonic stem cell research and vaccines, and consider whether those who benefit are morally complicit with evil. Finally, this article will argue for the abolition of the discriminatory treatment of the unborn by recognizing their humanity and conferring upon them constitutional personhood status from creation to natural death.
II. Abortion, The Moral Debate
The history of the common law reveals that laws against homicide protected all human beings, including unborn children. When a pregnant mother felt her baby move within her, called quickening, this was considered evidence that the woman was "with child." Blackstone's Commentaries describes the right to life as "a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb." (2) In Blackstone's lifetime, legal protection of the fetus from homicide began at quickening, when it was assumed that life began for the unborn child. (3) In the Thirteenth Century, Brackton and Fleta ruled that killing an unborn child where there was evidence of quickening was homicide. (4) As the common law developed over several hundred years, famous legal authorities including Fleta, Staunford, Lambarde, Dalton, Coke, Blackstone, Hawkins, and Hale referred to the unborn human being as a child and never as potential life. …