Two Human Bodies, Both With Unalienable Rights

Christmas is a good time to think about pregnant moms and their little ones in the womb.

In every pregnancy, there are two human beings. One larger, older, pregnant and for nine months extra vulnerable: the other much smaller, newer, very young, and for that nine months utterly defenseless.

Both are unique, lively human beings. Both share unalienable human rights that don’t depend on size or age or how they look or how we rate them. Both deserve benign health care.

So why is elective abortion allowed to deliberately harm the smaller human being?

In Dobbs (2022), the U.S. Supreme Court ruled that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.”

The Court said that the history of judicial decisions and passage of laws protecting the unborn were “spurred by a sincere belief that abortion kills a human being.”

Not Just “a Sincere Belief”?

But was that “sincere belief” based on established legal principles and medical science?

Yes, here’s proof:

1. When the U.S. Constitution was being drafted, Sir William Blackstone was the pre-eminent legal authority. American lawyers throughout the founding and first hundred years of the Republic were taught in Blackstone’s Commentaries (Volume I Chapter I “Of Persons” that legal personhood “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” 

2. James Wilson, one of six original U.S. Supreme Court Justices, confirmed this in his lectures, Of the Natural Rights of Individuals (1790). He added that “human life, from its commencement to its close, is protected by the common law.”

“By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”

3. In Elements of Medical Jurisprudence, Volume 1 (1823), Theodoric and John Beck taught that “neither movement, nor completeness of anatomic development, nor full organic function is a necessary condition of genuine life.”

“The foetus enjoys life long before the sensation of quickening is felt by the mother.

Indeed, no other doctrine appears to be consonant with reason or physiology, but that which admits the embryo to possess vitality from the very moment of conception.

If physiology and reason justify the position just laid down, we must consider those laws which treat with less severity the crime of producing abortion at an early period of gestation, as immoral and unjust.”

4. By 1845 in Harper v. Archer, the Mississippi Supreme Court reaffirmed that recognition:

“Nine months is the usual period of gestation, and we think it right to place the commencement of foetal existence to that period before birth. It was formerly a question at what time the embryo might be said to be alive…. But it is now settled, both in England and in this country, that from the time of conception the infant is in esse.”

5. Francis Wharton’s A treatise on the criminal law of the United States(1861) endorsed that legal status:

“It has been said that it is not an indictable offense to administer a drug to a woman, and thereby procure an abortion, unless the mother is quick with child, though such a distinction … is neither in accordance with the result of medical experience, nor with the principles of common law. The civil rights of an infant in ventre sa mere are equally respected at every period of gestation.”

Wharton’s work also expounds the true meaning of quickening in the very decade the Fourteenth Amendment equal protection clause was drafted:

“The notion that a man is not accountable for destroying the child before it quickens, arose from the hypothesis that quickening was the commencement of vitality with it, before which it could not be considered as existing. This ‘absurd distinction,’ as it is called by Dr. Guy [New York Journal of Medicine, Vol. X, (1848) Art. XIII] is now exploded in medicine, the fact being considered indisputable, that ‘quickening’ is the incident, not the inception of vitality … The foetus is certainly, if we speak physiologically, as much a living being immediately after conception, as at any other time before delivery; and its future progress is but the development and increase of those constituent principles which it then received.”

Constitutional Protections From Abortion

Today, three constitutional principles explain just why the Supreme Court discerned correctly that there is no right to abortion in the Constitution.

First, the Constitution has always recognized the right to life — the most basic right of every live human being to go on living. Our unborn daughters and sons. now more visible through ultrasounds, are already lively members of “our Posterity” to be protected with the same diligence and integrity as for “ourselves.” Place of residence must not be used as grounds for discriminating. Any human being is entitled to full human rights no matter where that human being currently resides — in prison, or on the streets, or in the womb of one’s mother.

Second, the Constitution has always recognized the right to equal protection of the law for all human beings. Nowhere does the Constitution limit equal protection only to those human beings who meet arbitrary stipulations regarding size, age, stage of development, or degree of dependency, disability or “wantedness” [c.f., “the unwanted child” in Roe v. Wade (153).]

Third, the Constitution has always recognized the right of all human beings to be treated as “persons” — never as property. In United States v. Palmer (1818), Chief Justice Marshall put on record that the Constitution allows no lawful distinction between human beings and persons:

“The words ‘any person or persons’ are broad enough to comprehend every human being … the words ‘any person or persons’ comprehend the whole human race.”

Constitutional law does not permit human beings to be owned as property or to be destroyed at the will of a so-called owner.

The ‘No Property in Man’ Principle  

This third principle is where Congress must do the hard yards.

Sooner or later, Congress must do its duty to apply the “no property in man” principle, recognized from the beginning by the Founders. Records of the Federal Convention (August 25th 1787)

Congress is required and empowered by the 13th Amendment “to enforce” across all states the abolition of ownership of human beings.

Congress must  exercise over recalcitrant states “the power to enforce … by appropriate legislation” the abolition of ownership of any human beings under our control and care.

Congress must put protection of unborn infants as human beings (not their mothers’ chattels) on a secure and legal footing.

Real live human beings are targeted for abortion. Fake property rights over them should not be assigned to us as their mothers. The ties between us are ties of belonging — not ownership. Current denial of the humanity of these little ones chosen for lethal treatment lies at the heart of erroneous abortion rights.

The hard work of re-instating the Constitution’s legal protection for our smallest human beings must begin. It remains the solemn duty of the Congress — not the States — to redress the immense damage being done by pro-abortion states’ legislators to our equal protection moorings in the Constitution.

Protection for the littlest among us must be restored. That’s their right and our duty.

READ MORE from Rita Joseph:

DOJ Attempts to Stake Abortion Rights on Commerce Clause

Slavery and Abortion Have More and More in Common

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