Wednesday, June 16, 2010

Is Every Abortion a Homicide?

In Roe v. Wade, Justice Blackmun writes, "The appellee (argues) that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. (If) this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

This, of course, is the motivation for Blackmun's ignoring the equal protection clause and dehumanizing the unborn. He knows what a person is. All the Justices know it. All of us know it. But to acknowledge the humanity of the unborn would, Blackmun fears, not only finish Roe v. Wade, it would outlaw abortion across the country. It is this fear that keeps the liberal Justices, and the right-wing Justices, from reading the equal protection clause honestly and forthrightly.

Yet Blackmun's assumption, and the Supreme Court's assumption, might be wrong. After all, nowhere in the equal protection clause does it say, "Life begins at conception." As a Constitutional matter, you don't know when life begins. So some of the unborn may very well fall outside the class.

Under our equal protection clause, a State is only required to apply the same rule to everybody. If a State has a death statute that applies to all people--for instance, total brain death--and allows abortion of embryos who do not have brain activity, how does that offend equal protection? The unborn are getting the same rule of law that we apply to us.

Where a State would violate our Constitution, it seems to me, is if it dehumanized the unborn, classified babies as objects, and allowed abortions in disregard of the State's own death statutes. This failure to protect the infant's life would obviously require Supreme Court intervention. It is entirely appropriate for the Court to require a State to apply its own laws to the issue and ensure that there was no unconstitutional discrimination against unborn infants.

In other words, if a State tried to do exactly what the Court did in Roe v. Wade, that would be unconstitutional as shit. A baby, born or unborn, has a right not to be killed by the State. It is up to the State, of course, to determine when human death occurs, but those protective rules must apply to all the people in the State across the board.

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