Russell and Duenes

“A Developing Organism”

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Justice John Paul Stevens, in his concurring opinion in Planned Parenthood v. Casey, makes an argument that truly deserves to have “scare quotes” surrounding all of it. First he writes that “the Court in Roe carefully considered, and rejected the State’s argument ‘that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.'” I’ve tried to evaluate this argument elsewhere on this blog, but we’ll leave that aside here. Justice Stevens goes on: “After analyzing the usage of ‘person’ in the Constitution, the Court concluded that that word ‘has application only postnatally.’ . . . In short, the unborn have never been recognized in the law as persons in the whole sense. Accordingly, an abortion is not ‘the termination of life entitled to Fourteenth Amendment protection.'”

What has Justice Stevens done here? He’s made a scientific, moral, and spiritual argument and tried to disguise it as a legal one. So “the unborn have never been recognized in the law as persons in the whole sense.” Fine, as far as it goes. At one point Africans had “never been recognized in the law as persons in the whole sense.” But his real trick is using the logic of his first proposition to define the unborn as somehow possessing a different kind of life than the life I enjoy. That is, he’s allowed the unborn’s “ontological status,” as it were, to be altered by the way the unborn are understood under the Fourteenth Amendment. Because under the Fourteenth Amendment the unborn baby is not a “person in the whole sense,” and thus not worthy of Constitutional protection, then the termination of that unborn baby’s life is now justified. Isn’t this the same kind of procedure various, shall we say, unsavory countries have used to define ethnic minorities as subhuman under their laws and then systematically kill them? If the law doesn’t recognize them as fully human, they must not be fully human, science, moral truth, and spiritual reality be damned. So, unless we can amend the Constitution such that unborn babies are “recognized in law as full persons,” we simply cannot guarantee their lives in law? Sounds rather unsavory to me.

Such “defining down” of the unborn does not remain contained in isolated spaces. Justice Stevens’ understanding of the “non-person” status of the unborn leads him to further characterize the unborn child as “a developing organism.” He writes, “Thus, as a matter of federal constitutional law, a developing organism that is not yet a ‘person’ does not have what is sometimes described as a ‘right to life.'” He concludes: “The state interest in potential life is not an interest in loco parentis, for the fetus is not a person.” The Constitution says so!

Of course, the only relevant question is: What is the unborn? Justice Stevens says the question can be finally and fully answered by the Constitution: Not a person, only a developing organism with no right to life. But what if there’s a law above the Constitution that tells us what the unborn is? What if there’s a law above the Nazi laws that tell us what Jews are? What if there’s a law above our Constitution that tells us what Africans are? Does living in a “nation of laws” under the “rule of law” mean that we submit ourselves to lawlessness painted as law? As one who should know famously said, “An unjust law is no law at all.”



Written by Michael Duenes

July 20, 2012 at 7:16 am

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