Considering how epically it fails on constitutional, historical, logical, and scientific grounds alike, Roe v. Wade’s continued prominence in American legal thought could have only one effect on it: degrading. Like the old saying about tangled webs and deception, the lies and illogic at Roe’s core sustain themselves by reproducing.
Consider, for example, the latest piece by Imani Gandy, legal consultant for RH Reality Check. She critiques as unrealistic personhood advocates’ hope that enacting personhood protection for unborn at the state level will establish a federal right to life within Roe’s existing framework.
Honestly? She may have a point there, though not for the reason she thinks – no justice who would uphold Roe’s framework is likely to recognize any major pro-life law as fitting within it, because Roe was always an after-the-fact rationalization for abortion, not sound constitutional application that just happened to end up favoring it. State personhood laws are just and necessary on their own merits, but judicially speaking, the specific kind of pro-life legislation that sparks a new review of the “right to choose” matters far less than the ideologies of the judges hearing the case.
However, in making her case, Gandy posits a convoluted and frightening understanding of personhood:
So what is “personhood?” It depends on whether one is talking about natural personhood or juridical personhood.
“Natural personhood” refers to persons as the term is understood in common parlance. Sir William Blackstone characterized “natural persons” as those “[s]uch as the God of nature formed us.” Natural persons don’t have to wait for a court or state to grant them rights; the rights available to “natural persons” attach at birth. While the constitutional rights afforded “natural persons” are subject to change, whatever constitutional liberties are available, “natural persons” are entitled to them. In short, “natural persons” are alive and breathing people with all of the rights that one normally associates with being an alive breathing person.
It’s telling that Gandy’s description rests largely on a Blackstone quote that reads more like a pro-life definition of “person” and intuitive-yet-irrelevant factors like whether someone happens to be breathing, and never mind the fact that she doesn’t even mention biological humanity. As our friends at Abort73 explain, there is no such thing as a human non-person:
Something is a person if it has a personal nature. In other words, something is a person if, by nature, it has the capacity to develop the ability to think rationally, express emotion, make decisions, etc. This capacity is something that a person has as soon as he begins to exist, since it is part of his nature (in other words, if he exists, he has it). Since humans have a personal nature, humans are persons. As for the fetus, since it is a human (something with a personal nature), it is a person. Just as a cat qualifies as a feline simply by being a cat, a fetus qualifies as a person simply by being a human […]
At this point, some people define the term “person” according to function (call this view the functional view of persons). That is, they say that something qualifies as a person if it can do certain things, like think rationally. But this definition of personhood fails. First, there are clear cases in which something qualifies as a person, but cannot do the things required of the functional view of persons. For example, a human person under a general anesthesia does not qualify as a person under the functional view of persons, since a person in this situation does not have the ability to think rationally. Two, the functional view of persons does not fit certain intuitions about persons. For example, if you had a cat that couldn’t purr, couldn’t chase mice, and couldn’t climb trees, you wouldn’t say that your cat isn’t a feline (though you should if you define “feline” in terms of function). Instead, you would say that your cat is a cat that can’t purr, chase mice, or climb trees. In the same way, if you know a human that can’t think rationally (like a fetus, or a person under a general anesthesia), you shouldn’t say that this human isn’t a person, but that this is a person who (at the moment) can’t think rationally.
“Juridical personhood,” on the other hand, refers to “artificial persons.” Juridical persons are legal fictions, and are granted by states certain rights normally associated with live, breathing persons. These rights are do not attach at birth, and whether or not juridical persons are afforded constitutional rights is subject to the whims of the state. There is no framework for determining what rights shall be granted to a juridical person, and generally, such rights are granted in an effort to accomplish a particular social goal.
The most common (and befuddling) example is corporate personhood. From Citizens United to the ongoing birth control benefit lawsuits, whether or not corporations are persons under the Constitution and to what extent corporations may avail themselves of the various constitutional protections afforded persons is a complex issue.
We may not have some exhaustive master list of who gets what legal rights when, but we actually do have an authoritative framework for gleaning the bare minimum American law must recognize: the Declaration of Independence, John Locke’s Second Treatise, and the U.S. Constitution. The first gives the United States a mission statement – “to secure these” “unalienable Rights” to “Life, Liberty, and the pursuit of Happiness.” The second clarifies the natural-law framework Jefferson was referring to in the Declaration: “being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.” The third codifies the basic rights of personhood—“equal protection” of our rights to “life, liberty, and property” in the 5th and 14th Amendments.
It is indisputable that corporations are not alive and breathing persons, but rights traditionally viewed as reserved for natural persons or human beings have been granted to corporations, by and large to accomplish a particular goal, i.e., to protect the collective rights of the human beings (shareholders) that comprise the corporation. Consequently, granting corporations free-speech rights is not about granting a brick-and-mortar building the right to participate in the electoral process, but about allowing the shareholders that comprise the corporation a right to use their money collectively to influence elections, just as persons can use their money individually to influence elections.
This paragraph unwittingly demonstrates that the question is far less complicated than Gandy’s preceding paragraphs make it seem. Rather than legal personhood being completely unrelated to or distinct from natural personhood, the corporate example simply demonstrates that organizations are comprised of natural people, and as such they may collectively exercise the same rights people may exercise individually.
Lastly, Gandy’s talk of government “affording” and “granting” rights to juridical and natural persons alike turns on its head not only the purpose of law, but also its very legitimacy. While some rights, like voting at a particular age, are creations of the state, natural rights – especially the right to life we’re discussing here – are not. We all possess them equally and are entitled to see them respected, on the basic authority of our status as equal people. Government didn’t create them and has no just authority to take them away; its job is merely to recognize them for our benefit. As the Declaration says, governments “deriv[e] their just powers from the consent of the governed,” and “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”
Roe v. Wade is destructive of those ends. Inevitably, so too are its defenses.