The genesis for this column was a panel discussion held for Constitution Day at Owens Community College in Northwest Ohio. The “abortion panel” was convened on Sunday afternoon September 18th, 2011, and consisted of Mr. Ed Sitter, Law Professor Lee Strang and me.
The following is found in The Constitution of the United States, Article I, Section 2:Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons
From Wikipedia:
The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v. Sandford ruling by the Supreme Court (1857) that held that blacks could not be citizens of the United States.[1]
Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights.
Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in the United States. In Reed v. Reed (1971), the Supreme Court for the first time ruled that laws arbitrarily requiring sex discrimination violated the Equal Protection
The point of contention that appears to be most vexing for those who are
inclined to protect life but unwilling to concede that “personhood”
begins at conception is when does life, personhood or humanity begin?
The historical and theological standard of “quickening” has been
broadened by the medical term of “viability.” Recent medical literature suggests that some babies can survive outside the womb as early as 18 weeks following conception. Clearly medical technology and advancements in pediatric care have greatly enhanced the life-chances for “preemies.” It seems, therefore, that to select “birth” as the determinate indicator for defining personhood and a person’s assumption of inalienable rights is much too indistinct. Why not latch onto historical precedence, original intent and horse-trading political compromise to delineate a starting point for a person’s individual rights?
Within the many communities and colonies in North America where human slavery was practiced, for the most part the slaves were not permitted to exercise their natural rights and had highly restrictive civil rights. Nevertheless as the Constitution was being negotiated and drafted, the slave-holding states wanted each slave to be counted for population and representation purposes. This would have resulted in a huge power advantage for the South in the Congress. Yankee politicians understood the ludicrous idea of counting someone’s personhood but not allowing them the full benefit of their humanity, so they countered that slaves had no rights therefore they should not be counted for representation. Even in the beginning of our Republic a toxic compromise was devised. As you will note from the constitutional excerpt previously given, slaves were counted as three-fifths of a person for the purpose of determining congressional representation. The compromise was significant for two primary reasons: it maintained an equilibrium of power between the slave and the non-slave states; and placed into the Constitution of the United States the notion that slaves were human….that they were entitled to at least a portion of their personhood. It is possible that if the slave-holding states had been successful in their effort count each slave as a person for representation allotments, the power shift to the South may have prolonged the institution of slavery for a few more decades.
Denying personhood to someone just because of their status in the economic strata of the nation was finally forbidden by the 14th Amendment. The Due Process Clause forbade the denial of life, liberty and property rights to anyone for arbitrary reasons. It was then generally understood that a former slave who attained freedman’s status was the same person under either condition. Why not, therefore, recognize the unborn as potential persons just as the three-fifths formula did for slaves. This may be an awkward parallel, but isn’t the humanity or personhood of an unborn child on a par with that of a slave who may ultimately be free? Should the child be deprived of its personhood simply because of its circumstances prior to attaining full humanity? Historically we are aware of slaves being summarily murdered at the whims of others. Most of us are revolted by such inhumane treatment. The unborn children whose lives are snuffed out before they are born deserve our protection for their lives and their liberty. They should not be sacrificed as victims of their circumstances just as those early slaves who preceded them were unjustly killed because of their powerless conditions.
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