In Section IX [of the Court's opinion], the Court added that there was no legal grounds for factoring into this balancing test any right to life of the unborn fetus. The fetus would have such a right if it were defined as a legal person for purposes of the Fourteenth Amendment, but the original intent of the Constitution (up to the enactment of the Fourteenth Amendment in 1868) did not include protection of the unborn. The Court emphasized that its determination of whether a fetus can enjoy constitutional protection neither meant to reference, nor intervene in, the question of when life begins: "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."The logical flaw in this line of reasoning is immediately apparent to anyone with a natural law orientation. The United States is founded on the belief that "all men are created equal and are endowed by their Creator with certain unalienable rights." As should be unnecessary to state (which means it is necessary), the term "men" includes not only adult males, but females as well as anything else defined as "human," at any stage or condition of physical, mental, or spiritual development.
This is easy to understand. Whether someone is actually or potentially fully human is irrelevant. "Actuality" and "potentiality" are both stages of "being." In Aristotelian/Thomist philosophy, a thing cannot both "be" and "not be." Consequently, everything that is, is, while everything that is not, is not.
This sounds confusing, but reflect on it for a moment. If something "is," it is fully what it is, without qualification. A thing cannot partially exist, or only be a part of what it is. It either exists, or it does not exist. Period. A 98-pound weakling is only potentially a Charles Atlas with the power to return sand to a bully's face and take back the girl — but the weakling (if we believe comic book ads) does have the potential to become a Charles Atlas. Both the weakling and Mr. Atlas — as well as the bully and the girl — are fully human, all having the same potential to have rippling muscles and sand-kicking capability as anyone else. Both exist as fully as the others exist.
Similarly, a fetus has the potential to actualize as a fully developed human being. There is no question that a fetus is as fully human as, say, Barack Obama. "Potential" humans and "actual" humans are both human because both "are" as fully as the other. Consequently, both a fetus and Barack Obama participate in "being" as fully as does the other. Both are thus full human beings, and, within the natural law framework that provides and justifies the basis of the United States, both are therefore "persons."
The argument of the American Founding Fathers was that "the present King of Great Britain" violated their natural rights to life, liberty, property, and pursuit of happiness. That is, the Founding Fathers claimed that rights ultimately come not from the State, that is, the king, but from "the laws of nature and of nature's God." According to the Founding Fathers, possession of natural rights is contingent only on mere existence. To impose any other requirement denies not only the political philosophy used to justify separation from Great Britain, but renders the American Revolution an unjustified act of rebellion.
In Roe v. Wade, however, the Supreme Court effectively declared that possession of natural rights — personhood or personality — is contingent not upon mere existence of the human fetus (an obvious fact, although the majority opinion denied its implications), but on "original intent" of the framers of the 14th Amendment, as well as the "viability" of the fetus.
The 14th Amendment, however, enacted in 1868, was intended to extend the rights of citizenship to all Americans, and the protection of the law to all people. In relevant part, the Amendment states,
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.We will look at the implications of the specific wording of the 14th Amendment and the legal philosophy behind its interpretation by the Supreme Court in Roe v. Wade in the next posting in this series.