Newspaper article St Louis Post-Dispatch (MO)

An Arbitrary and Unconstitutional Threshold

Newspaper article St Louis Post-Dispatch (MO)

An Arbitrary and Unconstitutional Threshold

Article excerpt

Recently, my wife and I experienced the joy and beauty of a child's birth for the third time. As I watched my son take his first breath, I wrestled with the concept that in one moment he was a fetus, but in the next a child. When he was born at 4:45 a.m. he much more resembled a fetus than my 3-year-old son. Nevertheless, at 4:45 he was unquestionably a "person" under the 14th Amendment to the Constitution, which affords all "persons" equal protection under the law. Was he not also a "person" at 4:44 or was he merely the property of my wife?

The U.S. Supreme Court in Roe v. Wade recognized the significance of its decision to deny personhood to the unborn as establishing personhood would guarantee the fetus a "right to life specifically by the Amendment." The court, with virtually no legitimate textual support, concluded that none of the Constitution's references to "persons" including in the 14th Amendment (and practically speaking the Fifth Amendment) protected the unborn. Incredibly, however, the court unearthed a previously unknown and arbitrary constitutional right to abortions on demand. If you think I am overstating the holding, feel free to read the opinion yourself (and Planned Parenthood v. Casey for that matter).

There is no basis to exclude conceived, but yet born human beings from equal protection under the laws unless, of course, they are not human. Does anyone suggest that the fetal heartbeat we hear in the first trimester is distinguishable from the heartbeat of a newborn? Does a fetal hiccup sound different than a newborn hiccup simply because it occurs in a mother's womb?

By now you are thinking "this is old news" and "that ship has sailed." To the contrary, four decades and 60 million deaths later, this is still the most pressing constitutional issue of our time. An honest reading of Casey shows the court's reluctance to rely on Roe's unconstitutional rationale. …

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