Once More Unto The Breach

You have to hand it to North Dakota. On Tuesday, 2-17, the North Dakota House of Representatives voted 51-41 to declare that a fertilized egg has all the rights of any person. This means that aborting a fetus could be considered murder.

The bill's sponsor, Dan Ruby (R- Minot) said, "This is the exact language that's required by Roe vs. Wade. It stipulated that before a challenge can be made, we have to identify when life begins, and that's what this does."

The passage Ruby references is from Justice Harry Blackmun's majority opinion in the Supreme Court's 1973 opinion in Roe:

The appellee [Wade] 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 [Roe'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. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

Rep. Ruby is not an attorney, so he naturally thinks words mean what they say. Not so fast, Dan. If the word "person" as used in the Fourteenth Amendment does not include the unborn, as Justice Blackmun conjured, the North Dakota bill, however well-meaning and correct (in my opinion) will likely be held unconstitutional by a federal court, since it conflicts with old number 14.

Still, after 36 years of laboring under the ridiculous reasoning of Roe, you've got to admire the persistence and courage of pro-lifers. God bless you, Dan, and keep fighting the good fight!