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Philosophy, the Handmaid of Judicial Review Print E-mail
By Francis J. Beckwith   
Friday, 25 November 2011

In his most recent column here at The Catholic Thing, my friend Hadley Arkes raises the question as to why the federal courts, and the Supreme Court in particular, could not extend the protections of the Fourteenth Amendment to unborn human persons by employing the same reasoning these courts have utilized elsewhere.

What Hadley is suggesting in his query should be uncontroversial:  the courts must apply the principles of the Constitution to new realities that share the properties of those realities to which the principles have always applied, even though these new realities were not predicted or anticipated by the framers. 

In order to make this point, we need not look further than a 1970 federal district court case, Steinberg v. Brown (1970). This case was cited by the Supreme Court in Roe v. Wade (1973) as one of the many cases that had upheld anti-abortion statutes. What the Supreme Court failed to mention is that the Steinberg court upheld Ohio’s statute based on reasoning that the Supreme Court claimed the defendant in Roe, the state of Texas, did not provide, namely, evidence that a federal court had found an unborn human being to be a person under the Fourteenth Amendment. 

As in Roe, the plaintiffs employed the holding of Griswold v. Connecticut (1965) that found a right to contraceptive use and argued that this holding could be extended to include a right to abortion, since both activities involve the control of human reproduction. Unlike the Roe Court, however, the Steinberg court found the reasoning specious, precisely because abortion involves a third, unconsenting, party who was conspicuously absent from Griswold’s plurality opinion. Here’s what the Steinberg court writes:

Again the authorities are divided, some courts accepting the plaintiffs’ view, and others refusing to do so. The majority of this Court do not accept the plaintiffs’ contentions as constitutionally valid, but believes that the cases which do accept them have not been based on a proper legal or factual understanding. The plaintiffs’ contentions seek to extend far beyond the holding in the Griswold case this “right of privacy,” which is nowhere expressly mentioned in the Constitution or its amendments, but is only found in the “penumbra” of those articles. Rights, the provision of which is only implied or deduced, must inevitably fall in conflict with the express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law. The difference between this case and Griswold is clearly apparent, for here there is an embryo or fetus incapable of protecting itself. There, the only lives were those of two competent adults. . . .


 

[C]ontraception, which is dealt with in Griswold, is concerned with preventing the creation of a new and independent life. The right and power of a man or a woman to determine whether or not to participate in this process of creation is clearly a private and personal one with which the law cannot and should not interfere.

It seems clear, however, that the legal conclusion in Griswold as to the rights of individuals to determine without governmental interference whether or not to enter into the process of procreation cannot be extended to cover those situations wherein, voluntarily or involuntarily, the preliminaries have ended, and a new life has begun. Once human life has commenced, the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it.

What the Court in Steinberg is suggesting, as Hadley has argued, is that a legal principle has universal application. So, for example, if a statute that forbids burglary became law at a time when no computers existed, it would not follow that the prohibition against burglary does not apply to computers, that one is free to burgle computers from the homes of one’s neighbors since the “original intent” of the statute’s framers did not include computers. What matters is whether the entity stolen is property, that it is a thing that can be owned, not whether it is a particular thing (in this case, a computer) that the authors of the anti-burglary statute knew or did not know to be property at the time of its passage.

The religion clauses of the First Amendment apply to religious believers whose faiths came to be after the Constitution was ratified. A Baha’i, a Mormon, or a Seventh Day Adventist is protected by the First Amendment even though these sects did not exist in 1789.

Suppose the Earth were visited by an alien race of intelligent beings like the Vulcans of Star Trek lore. Imagine that one of the Vulcans, Sarek (Spock’s father), is denied employment in Cal Tech’s astrophysics department on the grounds of race. Would Sarek’s attorney not be able to appeal to the Civil Rights Act of 1964 because the law’s framers, and the president who signed it, had no awareness of the existence of Vulcans? What matters is whether a Vulcan is a person—an individual substance of a rational nature. If he is, then the law applies to him as it would someone of African, Italian, or Jewish descent. 

Therefore, if the unborn is a person—an individual substance of a rational nature—then the Fourteenth Amendment is meant to protect him even if the authors of that amendment did not have the unborn conspicuously in mind.
 

Francis J. Beckwith is Professor of Philosophy & Church-State Studies, Baylor University. He is the author of over one dozen books including Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University, 2007).

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Comments (6)Add Comment
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written by Michael Paterson-Seymour, November 25, 2011
There is a real problem here, with the idea of “individual” (i.e. indivisible) substance. The zygote is not individual, that is, indivisible, as can be seen in the case of monozygotic twins. If James and John are monzygotic twins, they cannot each be identical with the original zygote, for then they would be identical with each other: which is absurd, as Euclid would say. By calling them “identical twins,” we certainly do not mean they are numerically identical!

Now, we all know what a person is, when we speak of “the person over there,” or “Offences against the Person.” We mean a living, human body. That, one can argue, the zygote is. Do we really need to import the notion of individual,/indivisible, into that concept? Is it not sufficient to argue that the term “person,” in the Constitution is used in the popular, everyday sense of a living, human body?
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written by Francis J. Beckwith, November 25, 2011
Michael:

I am not addressing the question of what a person is. What I am addressing is the question of whether the Court may extend the protections of the law that apply to persons IF the unborn is a person. It is a conditional claim. Hence, the Vulcan analogy. This is why it would be no response to my argument to point out that there are no Vulcans. But, of course, if there were, then the law should be extended to them as well.

Having said that, I do address, in some detail, in other venues the question of whether the early embryo is in fact an individual substance of a rational nature. See, for example, a piece I published in the journal Christian Bioethics, "The Explanatory Power of the Substance View of Persons." You can access it via the articles menu on my personal website francisbeckwith.com. Nevertheless, even if you are correct that the early embryo is not a unified organism, that would not prevent the Court from extending the protections to the unborn at a later stage of development when in fact it is a unified organisms, e.g., 20 days after conception and onward. Thus, my point would be made regardless of when you think it is reasonable to believe an individual substance of a rational nature comes into being.
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written by senex, November 25, 2011
Another perceptive comment by Professor Beckwith following up on Professor Arkes’ earlier piece. As I mentioned in my comment on the earlier article, does the term ‘person’ in the third sentence of section 1 of the 14th Amendment mean an unqualified person, or should it mean only those persons identified in the first sentence? It seems that it should, for not all persons are given the benefit of due process, e.g., combatants in war, and terrorists killed or interrogated or imprisoned outside the US (at least before President Obama’s ukase). There is still some ambiguity whether person in the third sentence should be interpreted as ‘such’ person. That is a matter for judicial interpretation.
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written by Martial Artist, November 25, 2011
Professor Beckwith, please correct me if I am wrong, but, if Steinberg antedates Roe, and SCOTUS simply ignored the former precedent on the basis of the defendant not citing one of the arguments from the former in their briefs or oral argumentatiion, (which argument it seems to me would apply without needing reiteration), is it not abundantly clear the the doctrine of stare decisis is one that the court uses as a matter of convenience to arrive at the result desired by a majority of the justices?

If that is the case, what are we to make of SCOTUS' adherence to even the idea of the Rule of Law?

Pax et bonum,
Keith Töpfer
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written by Michael PS, November 26, 2011
Prof Beckwith

Thank you for your very helpful reply and for the reference to your article, which I read with interest.

It would seem there are two possibilities:

1) The zygote is an individual substance that ceases to exist on division into two (or more) discrete individuals.
2) The zygote is not an individual substance, but is composed of two (or more) “latent” (“incipient?”) individuals, in a symbiotic relationship, until division occurs.

On either view, what we have is, in Miss Anscombe’s words, a “living individual whole whose life is—all going well—to be the life of one or lives of more than one human being.” In this she echoes Tertullian, who said “That is a human being which is going to be one; every fruit is already in its seed.” [Homo est et qui est futurus; etiam fructus omnis iam in semine est – Apologeticum 9:8] This is the morally significant point; how it can be expressed in the juridical concept of “person,” is a more difficult question.
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written by Titus, November 28, 2011
Mr. Töpfer,

Steinberg is a decision of a federal district court: a trial court of first instance. The principle of stare decisis generally only indicates that a court should follow or preserve decisions of an equal or superior court. Thus, the Supreme Court prefers to follow its own precedents; Courts of Appeal prefer to follow their own precedents and must follow those of the Supreme Court; and District Courts prefer to follow their own precedents and must follow those of their respective Court of Appeals and the Supreme Court. But when viewed from the perspective of a higher court, the decision of a lower court has only persuasive effect.

Whether the Supreme Court's articulation of stare decisis is intelligible and defensible is another matter altogether. But the Court did not go off the reservation in its application of that principle simply by failing to follow the reasoning of Steinberg.

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