The Personal Website of Mark W. Dawson

The Constitution and Abortion

Rob Natelson, a distinguished Constitutional Scholar with whom I mostly agree, has written a new article, “Understanding the Constitution: Why It Doesn’t Protect the Unborn”, with which I mostly disagree. In this article, he states that the arguments for the view that the Constitution bans abortion have been set forth as follows:

• First: It’s a scientific fact that humanity begins at the moment of conception.
• Second: A human being is therefore a “person” as the Constitution uses the term.
• Third: The Constitution’s Fifth and the 14th Amendments each contains a Due Process Clause stating that no “person” shall be deprived of “life … without due process of law.”
• Fourth: Just as slavery was a national moral issue rather than a states’-rights issue, abortion also is an issue of national morality.

My disagreement with his article is that he haphazardly utilizes some words and terms in his arguments that are not explicit in the Constitution. I also believe that he has not examined one of the main arguments for the Unconstitutionality of abortion. First, however, I must define the words and terms that he utilizes and how I utilize them:

1. There is a difference between Human Beings and Humanity. A human being is an individual with Natural, Constitutional, and Civil Rights. Humanity is all the collective living human beings that inhabit the Earth. Our Constitution was written to preserve the rights of human beings through the formation of a government dedicated to providing an orderly society that preserved these rights. Therefore, humanity has no place in our Constitution, but human beings are central and integral to our Constitution.
   
2. There is a difference between Human Beings and other species of life, which assists in our understanding of what it is to be a human being—or “Why am I a human being and my dog is not a human being?”. For millennia philosophers, theologians, and scholars have been debating what constitutes a human being with no definitive answer. However, modern science can provide a definitive answer—a species is defined by its DNA genome structure. This DNA genome structure is established at the moment of conception, and each individual within a species has a unique chromosomal pattern that delineates an individual that is different from every other individual’s chromosomal pattern. As such, my dog and I are different individuals, as I am an individual of the Homo species, while my dog is an individual of the Canis species, and my dog and I are unique individuals within our species.
   
3. There is a difference between a person and an entity. A person is an individual human being, while an entity is a collection of individual human beings based on a common interest. A business entity is for the purposes of commerce, while an organizational entity is a group of individuals organized for the pursuit of a common activity or cause. The Constitution of the United States is about person(s) and makes no mention of entities. Consequently, entities derive implicit rights from the explicit rights of the person(s) involved in the entity. Business entities are regulated under the Constitution as a result of their involvement in ‘commerce’, while organizational entities have their rights as a result of the individual rights of their individual members.

It is these three differences that are core to my disagreement with Professor Natelson. My disagreements are based on my two articles about abortion, "The Abortion Question" and "The Analogy of Abortion and Slavery". I will, of necessity, capsulize my points in these two articles when I critique Professor Natelson’s article, and I would suggest you read these two articles as elaborations of my capsulized comments.

In Professor Natelson’s Argument #1: ‘Humanity begins at the moment of conception, the question is not when humanity begins, but when a human life begins. As can be seen in my above point #1, humanity is the collection of all human beings, while a human life is related to an individual person, as in point #2. Therefore, the proper argument against abortion is that ‘A Human life begins at the moment of conception.’ To argue that human life begins sometime during gestation is to deny the science of DNA for a nuanced definition of a human.

Some people would differentiate between a human life and a human being to distinguish between when a human life begins and when this human life achieves the status of a human being, or as Professor Natelson has stated in his article:

“Exactly when life becomes human is a subject on which reasonable and informed people disagree. Some would place the critical moment at the time of conception; others at the time when cells differentiate from each other, or at the time of implantation, or when (and if!) the brain begins to function, or when the fetus has a heart, or when the soul enters the body. Science offers plausible answers and rules out implausible ones, but it doesn’t give us the answer.”

Such nuance is a slippery slope for further nuance to delineate what is a human being, a nuance that can never be definitive as it is subject to different beliefs and opinions. It also begs the question of how you can determine if a human life has not yet become a human being so that an abortion would be permissible. Without a definitive answer to what is a human being, it is not possible to perform a scientific test to determine if the human life has become a human being. Consequently, without a definitive definition of a human being and a scientific test to determine if the human life has become a human being, you risk aborting a human being. Therefore, it is not possible to distinguish between a human life and a human being, and any attempt to do so is a distinction without a difference.

As a human life begins at the moment of conception, and it is a human being, then Natural and Constitutional Rights begin at the moment of conception, and an abortion would be the taking of the life of a human being. Human beings die of natural and accidental causes, but abortion is not natural nor accidental, and therefore abortion is the deliberate taking of a human life. As the deliberate taking of a human life is a criminal act, then abortion is, therefore, a criminal act.

In Professor Natelson’s Argument #2: ‘The Unborn are “Persons” Under the Fifth Amendment’, Argument #3: ‘The Unborn are “Persons” Under the 14th Amendment’, and Other Problems with the Fifth and 14th Amendments, he discusses the difference between a “person” and a “human being” in legal terms:

“In daily discourse, we often use “person” interchangeably with “human being.” This is not necessarily true in legal language, however. Some traditional legal systems have denied personhood to certain classes of human beings, such as slaves or foreigners. Our own legal system grants personhood to corporations, which aren’t human beings at all, but rather formally organized collections of human beings.”

This malleable legal term of “persons” has been a source of great human suffering throughout history. Many societies, governments, and persons have denied the status of a human being to various races, religions, nationalities, ethnics, and other minorities as a justification for conquest, slavery, extermination, dispersion, murder, seizing of property, and various other cases of abuse of the Natural Rights of a human being. Professor Natelson is most certainly correct about the history of the unborn in America and how they were not always recognized under the umbrella of “persons”. However, he is most probably wrong that they cannot be recognized as persons without modifying the Constitution, as I shall discuss in my argument of the Ninth Amendment to the Constitution.

The recognition of corporations as persons is a legal fiction devised to deal with the fact that the Constitution says nothing about companies or corporations, as I have stated in point #3 above. It is an important legal fiction, but this fiction should only be utilized in laws and legal actions involving companies or corporations. A human being is, however, a legal fact. The Natural and Constitution Rights are inherent to a human being, and these rights must be recognized when dealing with each human being.

It should also be remembered that just because something is legal does not make it right, as I have discussed in my Article, “The Law is Not All”. Oftentimes, the law is created or modified by the powerful and/or the majority of a society to allow for the abuses of Natural Rights. The horrors of NAZI Germany were all legal, as Hitler and his minions eliminated laws, changed laws, and created new laws that allowed for the legality of their barbarous actions. The Nuremberg trials after World War II affirmed that laws that are a violation of the Natural Rights of a human being are not valid nor enforceable—as they are a crime against humanity. Consequently, obedience to these laws is not a defense for violating the Natural Rights of a human being. Thus, each human being is entitled to Natural Rights; amongst them are, as stated in The Declaration of Independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Consequently, if an unborn child is a human being, then it is entitled to the Natural Right to life and the other Constitutional protections in America, which we afford to all human beings that live in America.

In Professor Natelson’s Argument #4: ‘Abortion is a National Moral Issue, not a “States’ Rights” Issue’, I would remind all that we once let the States decide a moral issue in the pre-Civil War era. One of the main disagreements that led to the Civil War was the human status of the negro. Some States decided that negros were not quite human and could therefore be enslaved and treated as property. These same States also demanded that the new States also be given the right to determine if slavery was to be allowed in the new State. Leaving this moral issue to the whim of a state legislature under the “States’ Rights” doctrine allowed for the denial of the Natural Rights of negros, which tore the nation apart and led to a Civil War. As the science of that time could not definitively answer the question of the human status of the negro, ambiguous reasoning was utilized to determine the human status of the negro. Today, however, there is no scientific ambiguity to the human status of the unborn, as I have outlined in point #2 and my previous reasoning.

When an issue is one of the Natural Rights of a human being, it is not a States Rights issue but a Constitutional issue. Consequently, as abortion is a violation of the Natural Rights of a human being, it is not a States Rights issue and, therefore, must be resolved nationally. The question is, then, how can we resolve the abortion issue on a national level that is also Constitutional? The answer is the one argument that Professor Natelson does not address in his article. He has not addressed the issue of protecting the Natural Right to the life of the unborn human being under the Ninth Amendment to the Constitution:

 “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

If the unborn child is a human being, then it has the Natural Right to Life, and its Constitutional Rights are protected under the Constitution by the Ninth Amendment, and its Fifth and 14th Amendments rights are therefore guaranteed under the Constitution.

A Supreme Court ruling that an unborn child is a human being and afforded protections under the Ninth Amendment could resolve this issue nationally and constitutionally. The Supreme Court is loath to make rulings under the Ninth Amendment, as such issues are often ambiguous and best left to the legislative process to resolve. However, some of these issues are not ambiguous if viewed from the proper perspective. The abortion perspective that I have presented here within is not ambiguous, and therefore it is appropriate for the Supreme Court to undertake this issue. If these abortion arguments are legally rephrased properly before the Supreme Court, then the argument for the unconstitutionality of abortion becomes unambiguous, and it would be appropriate for the Supreme Court to make a nationwide ruling on abortion.

Given our current scientific knowledge of what constitutes a human life, as in my point #2, this would require that the Supreme Court rule that an unborn child is a human life and a human being to be protected under the Constitution. Professor Natelson’s statement that “If we disagree with the Constitution, we should work to amend it. We should not fall into the left’s corrupt practice of pretending the Constitution says what it doesn’t.” would not be applicable, as this is not a disagreement but an affirmation of the Ninth Amendment of the Constitution. It is an affirmation of the Constitutional founder’s wisdom that the Constitution is adaptable, within constraints, by changing knowledge and greater wisdom.

Since the Supreme Court ruling of Roe v. Wade in 1973, the total number of abortions in America from 1973 through 2020 is approximately 63.6 million+. This is 63.6 million+ human beings' lives that were not protected and ended, depriving them of their Natural Right to life. As with the shame of slavery, we must now bear the shame of abortion. And, as with slavery, we must end this practice forthwith to assure the protection of the Natural Rights of all human beings.