Abortion is Unconstitutional

We too often hear that abortion is a right or that it is Constitutionally protected. These statements are simply not true. As we have shown earlier, one simply does not have the right to commit abortion because it takes the life of an innocent human being. Now, I would like to show that it is not protected by the United States Constitution either.

In fact, there are two different amendments to the Constitution which actually make abortion unconstitutional. Of course, I am referring to the 5th and the 14th amendments.

Here is the text of the 5th amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."  

-- 5th Amendment to the U.S. Constitution (emphasis added)

Note that this amendment is a bit lengthy and includes text which is not relevant to the issue of abortion. So let me clarify the pertinent parts:

"No person shall ... be deprived of life ... without due process of law; ..."

As you can see, this is perfectly consistent with the full text above. So I am not taking anything out of context when I point out that this amendment to the U.S. Constitution states that "No person shall be deprived of life without due process of law."

Now, let's take a look at the 14th amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." 

-- 14th Amendment to the U.S. Constitution, Section 1 (emphasis added)

This is the full text of Section 1 of the 14th Amendment, and it also addresses topics which are not pertinent to the right to life issue. So here are the pertinent parts:

"nor shall any State deprive any person of life, ..., without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Note that although this amendment begins with a reference to "All persons born or naturalized," the parts which are pertinent to the right to life issue are NOT so prefaced and do NOT rest on that premise. In fact, the text is separated by a semicolon which isolates the pertinent text from earlier topics (such as citizenship) which were addressed and which are so prefaced.

Now, IF the latter portion of this amendment stated that "no state shall deprive any 'citizen' of life,...," then that statement would rest on the stated requirements of citizenship. However, this amendment clearly and intentionally does not do so. Rather, the text clearly states that  "no state shall deprive any 'person' of life, ...." This fact is a clear and profound rejection of the idea that citizenship or birth is required for the protection of life.

Furthermore, this amendment also states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." So not only is the right to life specifically protected, this amendment also makes the more general equal protection under the law a Constitutionally protected right.

This much alone should be sufficient to show that abortion is thoroughly unconstitutional. Unfortunately, some people try to defend abortion by expressing their opinion  that only born human beings are "persons." As we have shown earlier, this is an irrational proposition.

Furthermore, neither of these amendments define personhood in any way that is consistent with that opinion, and I find it telling that these people wish to redefine "person" in such a way as to include themselves while excluding those other human beings that they wish to be allowed to kill.

If "person" and "human being" are distinguishable, then proponents of that view should present objective evidence of that distinction, and provide an objective, scientific test by which we can objectively determine just when a human being has developed into a person. Without such an objective test, this distinction is meaningless and cannot be objectively implemented (i.e. in law). Of course, no such objective personhood test exists, and those who try to make the unsubstantiated distinction between humanity and personhood do so arbitrarily and without any objective support.

Finally, let me direct the reader to Webster's Dictionary of 1828. The English language has evolved somewhat since these amendments to U.S. Constitution were adopted. The 5th Amendment was adopted along with the rest of the Bill of Rights in 1791, and the 14th Amendment was adopted just after the Civil War in 1868. Thus, it is important to determine how "person" was used in those times. Webster's Dictionary of 1828 provides an excellent and timely resource for answering such questions.

Definition 1: "An individual human being consisting of body and soul. We apply the word to living beings only, possessed of a rational nature; the body when dead is not called a person It is applied alike to a man, woman or child."

Definition 2: "A man, woman or child, considered as opposed to things, or distinct from them."

Definition 3: "A human being, considered with respect to the living body or corporeal existence only."

Definition 4: "A human being, indefinitely; one; a man."

These are the first four definitions for "person" provided, and it is clear from them that birth is not considered in any of these definitions. Nor do any other character traits enter into these definitions. Although many modern critics try to invent criteria for personhood which exclude those who haven't been born, this dictionary does not employ any of them in defining personhood. For instance, none of these qualities are employed:

• sentience
• self-awareness
• autonomy
• consciousness
• heartbeat
• brainwaves
• personality
• independence
• self-sufficiency

Thus, when these amendments were adopted, none of these kinds of things were considered in defining personhood. Quite the contrary. In fact, three of these definitions specifically refer simply to "a human being." It is clear that these amendments actually refer to human individuals, and do not distinguish some humans as persons who will be protected while leaving others unprotected. The notion that personhood can be distinguished from humanity is simply a misrepresentation of the term "person" that some critics have invented in order to justify such violations as slavery and abortion.

 Of course, science clearly shows that the unborn are human individuals. They are human beings in the same sense that any born person is. Therefore, since "person" is defined to be any human being, this must include the unborn. So the definition of "person" used at the time of writing of these amendments applies to all human beings from fertilization to death. The opinion that "person" is not synonymous with "human individual" is simply not supported by either science or history.

Thus, it should be clear to any rational, thinking person that the United States Constitution clearly supports the right to life position and the truth that all human beings possess the right to life. One must remember that the Supreme Court is staffed by people who have their own political and religious views, and so is not infallible in its interpretation and application of the Constitution. Roe v. Wade should be reconsidered and overturned because it can be clearly shown that abortion is thoroughly unconstitutional.

Acquiring Personhood

Personhood is an either-or proposition. You either are one or you aren't. You can't be partially a person. There aren't some people that are more of a person than others. There are only persons and non-persons.

Because of this fact, it is necessary for persons to form from non-persons instantaneously. It has to go from "non-person" to "person" all in one step.

A long slow process like development cannot be the method by which a person comes to be a person. If "person" were synonymous with "consciousness" or "self-awareness" or having certain physical features like eyes or nose, then born humans who don't have these things are not persons and can be killed at will. And if a slow development process of growing ability makes a person then there would have to be degrees of personhood to match the varying abilities of different humans. Maybe I'm more of a person than you are because I'm smarter or taller or more awake at the moment. Maybe I should have more legal protections than you because of that. That is the kind of logical problem that this kind of thinking introduces. But of course, there are no degrees of personhood. There are only people and non-people.

Since there must be a point at which a non-person becomes a person, it is imperative that we find it. If we cannot find that point - specifically and definitively - we must give all humans the benefit of the doubt so as not to kill actual persons and thus violate their rights.

It's actually pretty easy to find the point at which a person is formed. A person can't be formed through a slow, gradual process like development. There is no transition point in the process of developing self-awareness, for example. There are many shades of awareness, both before and after birth, but they do not affect personhood. So if development can't produce personhood because it is too slow and gradual, we must look for a radical event that produces a sudden change in the nature of the organism in question. We must look for something that precedes development because development still happens to what we know is a person and development can't produce personhood, so the event that produces a person must occur before development begins. The only event that qualifies as a sudden, radical event that precedes development is fertilization.

Only fertilization produces the radical change necessary to provide a turning point from non-person to person. Fertilization produces a new human individual who didn't exist before. Fertilization changes two mere cells - parts of a larger body - into a brand new organism that develops and grows itself and works to further it's own bodily integrity. This new entity has all the instructions present to form an adult human body. This entity is already either male or female. This entity, like any other child, is merely less-than-fully developed.

You see, personhood isn't something we attain through gaining abilities. Nor do we lose personhood if we lose those abilities. Personhood isn't something we do. It's something we are.

Of course, if you disagree, you either have to claim that there are degrees of personhood (to correspond with degrees of ability) or you have to come up with a specific and definitive point at which a non-person suddenly becomes a person and a way to justify that point. It can't be something nebulous like "a few weeks after conception" or "in the second trimester" or "when consciousness is developed." It has to be something specific and defensible as a transformation point. If you cannot objectively identify a point at which a person becomes a person, then you must, ethically, treat all human individuals as persons since you do not know if they are or not.

What is Personhood?

What is humanity? What is personhood? What makes a human being so uniquely a human being? Are all human beings equal? These are questions we must answer.

Not answering these questions – as individuals and as a society – means we have no way to apply the law equally to all human beings. If we don’t know who is a human, how do we know who has human rights? If we don’t know what a person is, how can we tell if we are mistreating one? There has to be a conclusive answer and we have to find it. It’s not good enough to say that no one knows and leave it at that. If it’s really true that no one knows, then we are guilty of criminal ignorance because we have not answered this extremely important question. How can we even pretend to have a just law or any measure of equality if we can’t even determine who it is that is supposed to be equal?

Of course, that doesn’t mean that it’s an easy question to answer. Defining personhood is difficult. But not because it’s too complicated or esoteric or unanswerable. It’s difficult because we don’t like the obvious answer. We want to make it more complicated so we can avoid the question or relegate it to the realm of unanswerable mysteries. The implications of the obvious answer are as profound as they are unsettling.

The simple truth is that all living biological organisms with human DNA are human persons, regardless of their race, ethnicity, age, stage of development, location, gender, disability, or any other characteristic. Those things are only ways of describing a person. They don’t define one.

The problem is that we humans are really good at ignoring or denying this simple fact. We have a really bad track record when it comes to how we treat other humans. We’re very good at rationalizing our prejudices and bad behavior. One way we rationalize this mistreatment of each other is to deny that the other person IS a person. We tend to explain away the humanity and worth of our fellow humans so as to justify treating them differently. We say we want equality, but we really mean “equality” for people like ourselves.

History is full of examples. Trying to separate humanity and personhood, as if they were different things, has been done throughout the ages by those who wish to trample on the rights of others. In Nazi Germany, it was the Jews, the physically and mentally disabled, and the gypsies (among others) who weren’t “persons.” In US pre-Civil War times, it was the African Americans who weren’t “persons.” Even women were once considered less of a person than men. And those are just a few of the more recent examples. But every time we have tried to separate humanity and personhood, we have been wrong. And it has led to horrific crimes against other people.


On this side of history, we see the mistakes of the past and we wonder how anyone could think it was okay to murder, rape, and enslave other human beings. Couldn’t they see how wrong it was? And yet we still haven’t learned our lesson. We still try to define personhood as some esoteric property that some humans do not possess.

I’m referring, of course, to abortion. The murder of the unborn.

We aren’t as enlightened as we think we are. We’re still trying to pretend that some humans aren’t people so we can justify mistreating them. We just changed the criteria. Rather than looking down our noses at people of another skin color, we are ignoring the rights of the youngest and weakest among us. Why? Well, they look different. Same argument, different wrapping paper.

Not only do we ignore the rights of the unborn, but we pat ourselves on the back for our cleverness in defining personhood in the process. We’re so proud that we’ve given up defining personhood by superficial characteristics like skin color or gender. We have better criteria now.  Personhood has to do with self-consciousness. Or maybe it’s about being able to survive outside a womb. Or maybe it’s a heart beat. Or brain waves. Or eating chocolate. Ok, maybe we aren’t sure. But we are sure that those unborn children aren’t the same as us. The details aren’t important. They don’t have whatever it is that makes us a person, so it’s not like it’s murder to kill one. Until they develop that property – whatever it is – it’s okay to end their lives.

The problem with this argument is that “human-ness” or personhood – this elusive quality that makes us uniquely valuable and gives us human rights – is an either-or proposition. You either have it or you don’t. You either are a person or you aren’t. There are no gradations of humanity. We can’t be partially human or almost human. We don’t have some people that are more of a person than others. We have people that are bigger or older or more developed. We have people that are richer or poorer, taller or shorter, more or less capable. But we’re all equally human and equally valuable. We don’t gain our humanity by gaining any physical or mental abilities; nor do we lose it if we lose those abilities. We have this personhood attribute when we begin to exist and we have it for as long as we exist. There is no in-between.

Since development is a gradual process, taking tiny steps of growing ability, it cannot bestow personhood. Personhood must be gained all at once – going from “not a person” to “person” in one giant leap. It cannot be achieved gradually because there are no gradations of humanity or personhood. You can’t gradually develop personhood as you gradually develop consciousness or body functions.

In the end, we see that all attempts to separate humanity and personhood fail. Race doesn’t provide a logical basis for denying personhood. But neither does development. We have to face the facts, no matter how uncomfortable we find them.

The ONLY event that objectively and categorically produces a new human being where there wasn’t one before…

The radical event that we can all point to as the beginning of life…

The time when development starts and a new and unique individual is formed…

…is fertilization.

Only fertilization meets the criteria for an event that creates a new human life. All humans must be persons. Fertilization creates a human. So at fertilization we achieve our humanity and our personhood. The two cannot be separated.

Nothing else makes sense.

 

Note: This post first appeared on Lindsay's Logic on Dec. 19, 2013.