Personhood: The Achilles’ Heel of Roe?

On May 8, the New York State Court of Appeals rendered a final decision on a petition brought by a group called the Nonhuman Rights Project (NhRP). The NhRP first filed for a Writ of Habeas Corpus in 2013 on behalf of clients Kiko and Tommy, two adult chimpanzees.  The NhRP objected to the chimps being confined to “small cages …in a crowded residential area.” So, they requested to have legal personhood conferred on the two animals so that habeas corpus, the legal means of securing a release from unlawful imprisonment, could be applied. If successful, the chimps’ owners would be forced to release them to an animal sanctuary.

As reported in The Buffalo News, the case made its way through the courts for a number of years, with each successive court denying the NhRPs petition.  These decisions were ultimately upheld by the Appellate Court, ending the NhRPs campaign.

Determining legal personhood is a task undertaken by the courts with increasing frequency. The United States Supreme Court rulings in Citizens United v Federal Election Commission (2010) and Burwell v Hobby Lobby Stores, Inc (2014), were based on the premise that corporations have the same legal rights as individual citizens.  Advocate groups, like the NhRP, have brought lawsuits seeking legal personhood for animals, trees and rivers, and robots.

Most significantly, a growing number of states are using evidence from modern medical technology to support more stringent restrictions on abortion, such as Iowa’s recent Heartbeat Protection Law. If challenges to these laws by pro-abortion groups reach the Supreme Court, it could compel the Justices to reconsider the personhood question in its most infamous context, the Roe v Wade decision.

The Fourteenth Amendment

What is “Person?”

…A human being considered as capable of having rights and of being charged with duties; while a “thing” is the object over which rights may be exercised [emphasis added]. Black’s Law Dictionary Free On Line Dictionary, (2nd Edition) 

The United States Supreme Court based its landmark decision to legalize abortion in Roe v Wade upon a discovery of a “fundamental” right to personal privacy in the Due Process Clause of the Fourteenth Amendment. However, because the Amendment refers to the Constitutional rights of the person, particularly the right to “life, liberty, and property,” the Court had to determine whether an unborn human child is a legal person and, thus, entitled to those same rights as is his mother.

Since the original framers of the Constitution did not offer a definition of ‘person’ that could be obviously construed to include the unborn, the majority of the Justices deciding Roe reasoned they could not either.  Nor did the Court take it upon itself to give a legal answer to the related question of when life begins.

As a result, the Court ruled that an unborn child is not a legal person. And that ruling has destroyed over 60 million American lives.

Defining Personhood in Roe

In the Roe decision, the Justices didn’t base their opinion on the fetus’ personhood from the actual wording in the Constitution and other case law, but on inferences drawn from what was NOT written.

The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person…”  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…But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application [emphasis added]. Roe, [157]

The other evidence used to establish the non-personhood of the fetus was the Court’s review of abortion practices through the ages, which, in the Justices’ estimation, were “far freer” compared to those in America in 1973 Roe, [158].

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt… , are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century Roe, [129].

Since abortion was not referenced in the writing of the Fourteenth Amendment, the Justices assumed it must have been such a common practice that the unborn as non-persons was a settled issue in Constitutional law.

Putting these two factors together, then, the Justices were “persuaded” to conclude “that the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn” Roe, [158].

The Two “Compelling” Interests of the State

The other critical question, when does human life begin, was not considered by the Court in Roe. The defendant, Dallas County District Attorney Henry Wade, had argued that life begins at conception and, therefore, the State had a compelling interest in protecting that life.  Declining to address this defense, the Court declared:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. Roe, [159]

What the Court did propose was a gestational age at which, in their estimation, the State’s “important and legitimate interest in preserving and protecting the health of the pregnant woman” would be equaled by the State’s “other important and legitimate interest in protecting the potentiality of human life.”

These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling” Roe, [162-163].

For its purposes, the Court arbitrarily chose “viability,” that is, when the fetus is able to live outside the mother’s womb, with or without artificial aid. With the medical knowledge of the time, the Court defined that point as “usually …about seven months (28 weeks), but may occur earlier, even at 24 weeks.” Roe, [160] This benchmark of viability was reaffirmed in the later ruling of Planned Parenthood of Southeastern Pennsylvania v Casey (1992), [860]  although that Court acknowledged that as medical procedures improve the point of viability may move to an earlier gestational age than suggested in Roe.

Iowa’s Heartbeat Protection Law

Desiring to take a much more protective stance towards the fetus, a few state governments are challenging the limits of the Supreme Court rulings and attempt to legally restrict abortions to a point well before viability. Citing both modern medical knowledge of fetal development and the increased risk to the mother’s health in second trimester abortions, Mississippi and Louisiana recently passed laws banning abortions after 15 weeks.

Going one step further, in Iowa, where abortions after 20 weeks gestation were already banned, Governor Kim Reynolds signed the Heartbeat Protection Law.  Now Iowa state law prohibits any abortion after the detection of the fetal heartbeat, which, using ultrasound, is around 6 weeks gestation. It is the most extreme prohibition on abortion in the country.

The sovereign state of Iowa recognizes that life is valued and protected, and each life, from the moment the fetal heartbeat is detected…is accorded the same rights and protections, including the right to life, guaranteed to all persons by the Constitution of the United States, the Constitution of the State of Iowa, and the laws of this state. Division I, Section 1, Heartbeat Protection Act (HF2163)

According to the Catholic News Agency, Planned Parenthood and the American Civil Liberties are challenging the law which they claim is “so clearly unconstitutional.” Moreover, Iowa’s Attorney General Tom Miller, a Democrat, disqualified himself from defending the law because “of the impact on women’s rights if it was upheld.” Undaunted, Reynolds welcomed the challenge, saying that in signing the bill she did something “bigger than just a law.” Admittedly, passing such a radical bill was partially motivated by the hope the legal challenges will work their way all the way to the Supreme Court and force the justices to review the Roe decision.

Between Property and Personhood

The predominance of human biological research confirms that human life begins at conception. At fertilization, the human being emerges as a whole, genetically distinct, individuated zygotic living human organism, a member of the species Homo sapiens, needing only the proper environment in order to grow and develop. The difference between the individual in its adult stage and in its zygotic stage is one of form, not nature. Position Statement, American College of Pediatricians (2017)

The technology of freezing embryos for in vitro fertilization has raised the question of personhood for this smallest of human beings. Frequently, couples going through divorce proceedings have resorted to petitioning the court to determine the disposition of embryos they have set aside for future pregnancies. While the way the courts have ruled vary widely from state to state, it is generally held that the frozen embryos occupy an “interim status,” not considered persons because of Roe, yet not considered property because of their potential to become human beings.

This ambiguity creates some difficulty in establishing legal precedence to be applied across all cases. Unfortunately, it often leads to rulings allowing the embryos to be destroyed rather than implanted, so as not to “inflict parenthood” on one or the other of the divorcing parties.

Property Damage Versus Wrongful Death

But what if something happens and wanted frozen embryos are destroyed? In Ohio, an accident in one of the cryogenic tanks at the University Hospitals Fertility Center resulted in the loss of as many as 4000 frozen eggs and embryos. Over 40 couples have filed lawsuits seeking damages for the cost of the in vitro procedures and loss of property.

However, one couple, Wendy and Rick Penniman, are seeking a judgement of legal personhood for their embryos so as to be able to sue the UH Fertility Center for wrongful death of what should be considered its patients.

As explained in the Penniman’s lawsuit,

While the Defendant [the Fertility Center] has publicly taken responsibility for the loss of the embryos, the Defendant is treating the embryos as chattel and simply offering to reimburse the Plaintiffs [the Pennimans] for the production of the embryos. [Since they contend that life begins at conception], the Plaintiffs view the embryos as patients of the Defendant, who should have been protected as such.

If the judge rules in favor of the Pennimans, they will be able to “seek relief for the mental anguish incurred as…surviving parents…[and] bring a cause of action on behalf of their other children for a loss of a sibling.”

The Collapse of Roe?

In his concurring opinion in the cases of Kiko and Tommy the chimpanzees, New York State Associate Judge Eugene M. Fahey wanted “to underscore that the denial [of habeas corpus] “was not on the merits of the petitioner’s claims [emphasis added]” and to note “the inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter.” He wrote, 

The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence, a thing?

If an Appellate Court Justice is impressed by the merits of a legal argument conferring personhood on chimpanzees, how much more so should the question be revisited in the case of the unborn human being? Obviously, the progress of medical technology has highlighted contradictions between legal semantics and scientific fact. Perhaps, at last, what was considered settled law for 45 years may be ripe for overturning should any of these challenges reach the Supreme Court. For as Mr. Justice Blackmun wrote in the Roe decision,

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 [emphasis added] Roe [156-157].