Personhood: Abortion's Essential Question

Has The Law Already Given Us An Answer?

When the Supreme Court issued its ruling this past Friday overturning Roe v Wade (410 U.S. 113 (1973)), it opened up a spirited debate regarding the future of abortion in this country.

Agree or disagree with the Supreme Court decision on abortion and overturning Roe v Wade?

Sadly, it also engendered spasms of violence, as pro-abortion protests in some instances devolved into riot, vandalism, and general mayhem.

Yet the debate is as important now as it ever was, and equally important is that people grapple with the particular issues that lie at the heart of that debate—something that Roe has held in abeyance for nearly 50 years.

Whither “Bodily Autonomy”?

The reaction by pro-abortion advocates everywhere has been an almost reflexive genuflexion to the concept of “bodily autonomy.” The law, they insist, must never ever tell a woman what she can and cannot do to or with her body. Even Justin Trudeau could not resist tossing off a virtue-signalling tweet to that effect.

Justin Trudeau @JustinTrudeau

No government, politician, or man should tell a woman what she can and cannot do with her body. I want women in Canada to know that we will always stand up for your right to choose.

New York Mayor Eric Adams proclaimed that had his former girlfriend not aborted their child when he was 15, he would not be mayor of New York City today.

“‘Eric, you’re arrested, you’re not going to school. What future is this baby going to have?’” the mayor recalled her saying.

Ultimately she made the “empowered” decision “that was smart for both of us,” he said.

Later, when asked during an appearance on 1010 WINS whether he thinks he’d be mayor today if the child was born, Adams said: “No, I don’t.”

However, such commentary overlooks a rather crucial aspect of Roe v Wade: “bodily autonomy” was never a deciding factor. Justice Blackmun’s ruling in several paragraphs explicitly asserted the authority of the State to decide such matters—which precludes a “bodily argument” from being applied vis-a-vis Roe.

As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.

It is quite possible that Blackmun was compelled to adopt such rhetoric, because neither he, nor the appellant, nor the appellees to the case could definitively answer the prerequisite question: “Is the unborn child a person under the law?” What Blackmun did acknowledge was that, were this question ever answered in the affirmative, it would end the entire debate, as the unborn child’s fundamental right to life would take obvious and immediate precedence.

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. [Footnote 51] On the other hand, the appellee conceded on reargument [Footnote 52] that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

While the premise of bodily autonomy is important, both legally and ethically, where abortion is concerned it of necessity must be the second question to be asked—the first being whether or not the unborn child is a “person” before the law.

Philosophical Or Legal Question?

A number of medical experts and ethicists assert that the question of personhood is inherently a philosophical question. John Miklavcic and Paul Flaman, of the University of Alberta, writing their review of the premise that personhood occurs at the moment of conception in the May 2017 issue of the Linacre Quarterly, drew a very clear distinction between the physical reality of a human body and the moral dimensions of human existence.

For the purposes of this work, a human being refers to a biologically human entity, and human person constitutes a moral category.

Personhood they consider to be a moral dimension. However, their ultimate conclusion was that personhood occurs at the moment of conception, that moment where the human being is unquestionably created.

All human beings have an end to their lives as persons in this world. In this article, the question of when personhood begins is posed. This work reviewed the economical stance that personhood begins at fertilization, as well as several other stances which argue for personhood at an arbitrary point after fertilization. The merits and criticisms of the positions which argue against personhood at fertilization were discussed herein. The arguments that challenge fertilization as the event at which human personhood begins do not sufficiently compel opinion due to several semantic discrepancies. Some of these discrepancies include extending personhood to non-human mammals and introducing discrimination among human beings by conferring “higher” personhood status to some people. Other proposed criteria for personhood discussed are fundamentally flawed. In light of the biological evidence and philosophical arguments discussed herein, it is most reasonable to support the notion that personhood status is present at the point of human fertilization.

While the philosophical exploration of the question is an important dimension of the debate, within a free society all such debates must invariably be reduced to their legal substance if there is to be practical application. Miklavcic and Flaman acknowledge this in their presentation.

Moreover, this legal element was acknowledged explicitly by Roe, for attendant upon personhood is the equal protection of the laws guarantee of the Fourteenth 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.

Personhood thus becomes the essential question on abortion. If the unborn child is a person before the law, abortion becomes by definition an homicide, and can enjoy no especial protection within the law. If the unborn child is not a person before the law, bodily autonomy questions rise to the fore, and it then becomes the challenge of the State to define its compelling interests (if any) in regulating abortion.

Can the law properly answer such a question? I have come to the conclusion that it effectively already has.

The Biology Of Conception

The biological realities of conception are at this point well documented and detailed.

Conception is the culmination of the process of fertilization, by which a male spermatazoa is united with a female oocyte to produce a zygote, that first cell of the new human being.

During the formation of the zygote, the DNA from both spermatazoa and oocyte organize into chromosomal pairs to begin cellular division and growth.

• Pronuclei - Male and Female haploid nuclei approach each other and nuclear membranes break down

• chromosomal pairing, DNA replicates, first mitotic division

• Spermatozoa contributes - centriole which organizes mitotic spindle

• Oocyte contributes - mitochondria (maternally inherited)

Thus, the zygote carries a distinct DNA, with half from the mother and half from the father. From the the time of the chromosomal pairing, the zygote, the embryo, the fetus, and ultimately the baby carry DNA that is neither the mother’s nor the fathers, but is an equal mixture of both.

This is basic biology. It is widely known and both uncontested and uncontestable.

Given that we know the DNA is unique, that does the law say about that DNA?

DNA And The Law: DNA evidence

By now it is an accepted principle that DNA is a reliable means of specifically identifying the individual. Within the United States, the use of DNA as evidence of identification is an accepted principle at in every court in every jurisdiction. So accepted is this principle that much of the case law surrounding DNA evidence addresses the particulars of evidence gathering and submission to the courts during trial.

For example, in the Supreme Court case Williams v Illinois, (567 U.S. 50 (2012)), Justice Alito explicitly acknowledged that DNA evidence was considered so reliable as to frequently exonerate persons convicted on lesser evidence, and that inhibitions on the use of DNA evidence would compel prosecutors to rely on less reliable evidence.

On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable.

In People v Robinson, (156 Cal. App. 4th 508, 67 Cal. Rptr. 3d 392 (2007), rev. granted February 13, 2008, S158528), the California Supreme Court upheld as valid a “John Doe” arrest warrant where the defendant was not named, but merely described by his DNA profile. In its ruling, the court noted that the use of a DNA profile as description was a permissible means to satisfy the “particularity” requirement of the Fourth Amendment.

State courts that have considered the validity of a warrant that described the suspect by his DNA profile have concluded that a unique DNA profile qualifies as a reasonable means of identifying the subject of a warrant or complaint when that DNA profile is the best description available.

An appellate case in Wisconsin, State v Dabney, (264 Wis. 2d 843, 663 N.W.2d 366 (2003), rev. denied 266 Wis. 2d 63 (2003)), similarly concluded that a criminal complaint and arrest warrant identifying the defendant solely by DNA profile were sufficient to confer “personal jurisdiction”—meaning the courts could effect an arrest and prosecution based on the DNA profile.

Based on the foregoing, we conclude that the complaint and warrant in this case satisfy the statutory requirements; therefore, the documents were sufficient to identify Dabney and were sufficient to confer personal jurisdiction. Accordingly, the trial court did not err when it denied Dabney's motion to dismiss based on this argument.

In State v Belt, (285 Kan. 949 (2008)), the Kansas Supreme Court noted that Fourth Amendment protections against unwarranted searches, seizures, and arrests were maintained so long as the warrant provided, if not a name, at least a description of the defendant by which he can be definitively identified.

The Fourth Amendment to the United States Constitution protects citizens from violation of their rights to be free from unreasonable searches and seizures, and guarantees that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . [person] to be seized.” K.S.A. 22-2304(1) codifies these constitutional standards as to Kansas arrest warrants, providing that such a warrant “shall be signed by the magistrate and shall contain the name of the defendant, or, if his name is unknown, any name or description by which he can be identified with reasonable certainty.” (Emphasis added.)

Although the Kansas Supreme Court would reject the arrest warrants in that case, it noted and accepted “in the abstract” the reasoning applied in both the California and Wisconsin cases.

DNA Is Identity

While none of these cases address abortion, they do make one thing absolutely certain: human DNA identifies a discrete human being. Thus identified, that human being comes under the jurisdiction of the courts—the human being is subject to arrest, subject to trial, and is availed of all the rights, liberties, and protections afforded him by statutory law and the United States Constitution.

DNA, therefore, identifies a person, and does so from the moment of conception, wherein the distinct DNA that identifies a distinct person is created.

As Miklavcic and Flaman note, on a philosophical basis, this acknowledgment of personhood at conception is the parsimonious and economical proposition—no other assumptions or criteria need be introduced to satisfy its precept.

Several noted authors and works support the claim that the life of a new human being and the life of a person begin at fertilization. John Gallagher states that after “look[ing] at all of the likely evidence suggested in the literature … none of it gives reason to believe that the human person begins to exist at any other point than fertilization” (Gallagher 1984). Other works hold the similar simple and parsimonious economical explanation—one that is economical as it does not necessitate that exhaustive criteria be met for personhood.

The acknowledgment of DNA-as-identity and therefore personhood within the law is equally a parsimonious and economical proposition. No additional legal theories are required. The existing acknowledgment that DNA satisfies the particularity requirements of the Fourth Amendment for the purposes of arrest warrants also satisfies the inferred personhood requirement of the Fourteenth Amendment to secure to the individual the equal protection of the laws.

DNA evidence was not available in 1973 when Justice Blackmun penned his opinion on abortion. While the structure of DNA and the biology of reproduction were known, the legal application of DNA to identify discrete human beings—individual persons—was still in the future. Yet Blackmun ironically recognized the possibility that such evidence might one day be before the courts, and thus upend his intrictate balancing act of presumed State interests.

Today we have such evidence. Today we acknowledge that a person is fundamentally described before the law by his or her DNA profile—a profile that is functionally created at the moment of conception.

As significant as concerns of bodily autonomy are, no assertion of bodily autonomy can extend to the wilful destruction of another person. Bodily autonomy can therefore only pertain to the debate on abortion if the unborn child is not a person before the law.

However, owing to the legal advances of DNA evidence, the courts have already acknowledge that DNA sufficiently identifies a person for the purposes of invoking the Fourth Amendment. That same DNA which identifies a criminal defendant under the Fourth Amendment must also identify a person due the equal protection of the laws under the Fourteenth Amendment. The unborn child is such a person, and his or her right to life and expectations of equal protection must override any consideration of bodily autonomy.

Personhood is and has always been the essential question of the abortion debate. Now that Roe v Wade has been relegated to legal history, it is time to acknowledge that the law has already provided the answer for that essential question: the unborn child is a person.