Distinctions among the unborn, and between the unborn and the newly born, in matters of life and death—like distinctions between the newly born and the toddler or you and me in such matters—are and would be subject to heightened scrutiny. Some distinctions would survive an evenhanded and careful scrutiny. Others, like Whelan’s examples, would not (with the result that this legislative attempt to escape from the default-to-murder would fail and the legislature would need to consider trying again, more fairly). The whole situation we are discussing would be new, but would essentially amount to no more and no less than a new field for applying routine procedures of litigious debate and resolution of disputed questions about equality of persons.
Are there sufficient reasons for the Court to hold that the unborn are persons within the meaning of the equal protection clause of the Fourteenth Amendment? Edward Whelan continues to doubt it. He also questions whether such a holding would have much legal effect. To these doubts he adds finally the view that the equal protection argument ought not to play much of a part in “pro-life legal strategy.”
Since questions of strategy have not been my concern, I will continue to say nothing about them, save that any strategy about anything should be aligned with the truth; my first and second essays together argue that there are here two truths converging on the same result. (1) The original public meaning of “any person” in the equal protection clause includes the unborn, as began to be judicially acknowledged and enforced almost as soon as intrusive limitations on the meaning of that clause’s “deny . . . equal protection” fell away in the 1950s and, coincidentally, the unborn began in the 1960s (for the first time in the United States) to be clearly denied equal protection. (2) That legal-constitutional position, annihilated by Roe v. Wade in a maelstrom of factual error and bad argument, corresponds to the facts about the unborn, and their place in any rationally defensible scheme of justice—a place which, given their situation and circumstances, is not simple but ought not to be denied by simply conferring on those in a position to destroy them the lawful authority to do so.
So I will say a few words about each of the first three parts of Whelan’s essay.
Whelan, I am sure with good intent, begins with a misstep. He refers, as if it were my position, to “the incomplete (only post-quickening) protection that common law provided the unborn,” and to the common law “allowing abortion between conception and quickening.” But both my essays stress that that is (or is way too close to) the false Roe claim, derived from Cyril Means’s now long-exploded history, that there was a common law legal liberty to abort before “quickening.” In truth, abortion at any stage of gestation was seriously unlawful under common law even in those jurisdictions that treated pre-quickening abortion as not indictable. I hope that Chief Justice Shaw’s ruling in 1845 will be taken to heart; I introduced and quoted it in my first essay:
Chief Justice Shaw of Massachusetts stated the position plainly in 1845: Yes, abortion is not indictable at common law until quickening. But because, “to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being: 1 Blackstone Com. 129” [emph. added], any attempt to induce an abortion on a consenting woman even prior to quickening is an act done “without any lawful purpose,” and so, if it happens to result in her death, it is murder—even though intended to help her and she fully consented to the risk.
Such unlawfulness, equating abortion to felony when it results in the death of the mother who solicited it, afforded to the pre-quickening unborn a level of protection very real though, as I put it, “relatively weak.” Alerted to this state of the common law, the Massachusetts legislature immediately made pre-quickening abortion an indictable offense.
Whelan’s main point in part I is that my citation of cases from the 1880s does not explain away the absence of appeals to the amendment by pro-life abortion law reformers 15–20 years earlier, at or soon after the amendment’s ratification. I agree that further research on that period is very desirable. But Whelan’s references to the 1880s do not do justice to the cases I cited from the early 1870s, evidencing the attitudes not merely of judges but of everyone—passionate litigants, for example, who battled discrimination against women by arguing all the way up to the Supreme Court, and who appealed all the time to the Fourteenth Amendment’s first sentence but never to its fourth sentence (equal protection). That absence of appeal to equal protection is inexplicable save on the basis of what my second essay called “assumptions very widespread if not universal since the amendment was first mooted,” assumptions that even more firmly would block appeals to equal protection by legislators wanting to extend further and more direct and deterrent protection to the unborn. These blocking assumptions, when articulated by the courts, proved to concern not the meaning of “any person” but the import of the phrase “deny . . . the equal protection of the laws.”
Whelan worries about the reference to “persons” in section 2 of the Fourteenth Amendment, concerning censuses for apportionment. He does not attend to the point of my first essay’s discussion of this: The meaning of the term was fixed by convention, particularly because what was under consideration was not someone’s life, liberty, property, or protection, but simply enumeration. There is no need to find any policy reason for excluding corporations from a census: They just are not persons in the sense of “How many persons are in this state rather than in that state?” (The same goes for the unborn, I think, but slightly less certainly, since they are natural persons. But though persons for the purposes of status and rights, they doubtless are excluded from section 2 by convention/custom and context: For they are mostly invisible, and information about them serves no purpose useful enough to make it worth trying to overcome the invisibility.)
The policy reason that Whelan constructs out of Justice Field’s theory—that (per Field) we look straight through the corporation to its human members and so (per Whelan) we would be “double counting” if we included corporations in the census—hardly applies to out-of-state corporations doing business in the state, and yet afforded Fourteenth Amendment protections there. But no matter: No such ingenious reason is needed (nor, I am confident, was it in mind). As for Field’s corporate-veil-piercing theory used in Pembina, the Supreme Court toyed with it for a couple of decades but threw it over forever in 1910 in Southern Railway v. Greene. To recognize corporations as included among persons for equal protection, it was and remains enough that the framers used “any person” in a legal culture in which artificial persons appear alongside natural persons in the law’s fundamental building blocks—witness Blackstone (who, incidentally, conveys no trace of Field’s theory). They knew that their language would be taken to include corporations unless either the context (as in section 2) or some inserted qualifier such as “born” or “natural” worked to exclude them.