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The Rights of the Unborn: The Constitutional Issues

by Clifford Stevens

Constitutional issues in the United States arise through litigation, through actual disputes brought into the courts. These issues are also resolved by litigation, by further action in the courts until the constitutional issues are clarified. This has been true in the past and it will be true of any national dispute that arises in the future.

What happens in litigation in constitutional matters is that principles imbedded in the Constitution, but not explicit in the text of the Constitution, emerge by the litigation process, and these principles become part of the constitutional inheritance of the nation and themselves become precedents for the resolving of future disputes.

The principles that have emerged in the past through litigation are numerous, but I will mention ten, which have become part of the fabric of constitutional law in the United States. These principles, it must be insisted, are implicit in the Constitution itself, and only emerged through litigation. Litigation is the process by which the Constitution is applied to new times and circumstances, resolving new issues as they arise.

The ten principles are the following:

1. the power of judicial review (Marbury v. Madison, 1803).

2. the doctrine of exceptionless rights (13th, 14th & 15th Amendments).

3. substantive due process (the 14th Amendment and related cases).

4. the mutuality of rights and duties (overturning of Plessy v. Ferguson).

5. the rights of workers (overturning of Lochner v. New York).

6. the rights of women (the 19th Amendment).

7. the rights of children (overturning of Hammer v. Dagenhart).

8. the doctrine of non-enumerated rights (Roe v. Wade).

9. the right of personal autonomy (overturning of Plessy v. Ferguson).

10. equality under the law (Brown v. Board of Education, Standing Bear v. Crook & related cases).

These principles emerged from the Constitution because of specific cases brought before the judiciary. They were not recognized at one time, but arose through litigation, that is, from actual cases brought before the courts. These principles and the rights they embody emerged from the Constitution as terms in the Constitution were applied to new disputes, concrete cases that came before the courts.

The latest such dispute, which again challenges the Constitution to reveal its principles, is the dispute over abortion and the rights of the unborn, a dispute never raised before in the history of the nation and rights never before brought before the judiciary, for the simple reason that those rights, before Roe v. Wade, were protected by state laws. Roe v. Wade has brought the question of the rights of the unborn into the legal arena, into the courts and into the purview of the Constitution itself.

The question now before the judiciary is: are there principles, imbedded in the Constitution itself, which provide a constitutional solution to the question? What cases, perhaps landmark cases, provide the principles, patterns and precedents for the question of the unborn? Is the question of abortion, a question of the civil rights of the woman involved, or is it a question of the basic constitutional rights of the unborn? How does this case, in all its concrete circumstances, align itself with the terms of the Constitution and how is that alignment to be traced?

These are the questions that have to be answered, and unless these questions are faced, it is not clear what are the constitutional issues involved and whose rights are at stake in the abortion question.

I am going to give a preliminary survey of three principles, not recognized before, that apply to the case of the unborn. These principles are based on terms in the Constitution itself, on principles that have already emerged from the Constitution and from collateral bodies of law that provide parallels with the question of the unborn. These three principles could not have emerged from the Constitution before the abortion question arose, because they had no application to any actual persons, just as the rights of children had no foundation in law until the rise of industrial society and the emergence of child labor as a national issue. In the case of the unborn, we are on the threshold of a totally new body of law, embryonic law. What we are witnessing is the birth of a new development in law, as significant as that pioneered by Abraham Lincoln in his opposition to slavery.

THE FIRST PRINCIPLE was enunciated by Chief Justice John Marshall in a case decided in 1824: Gibbons v. Ogden. The case the Commerce Clause of the Constitution, which lays down that commerce in the United States is regulated by Congress, and not by the several states. This was a direct result of the failure of the Articles of Confederation, which governed relations between the states before the Constitution, to regulate commerce for the benefit of the nation as a whole: each state placing duties and tariffs on the goods of other states crossing its borders. To assure the free development of commerce between the states, the power to regulate commerce was placed in the Congress alone.

Gibbons v. Ogden arose out of the invention of the steamboat by Robert Fulton. Fulton had secured from the State of New York a monopoly on steamboat navigation on the waters of the state. Under that monopoly, a businessman named Aaron Ogden was licensed by Robert Fulton to operate ferryboats between New York and New Jersey. When another businessman, Thomas Gibbons, with a license from the federal government, began to run steamboats in competition with Ogden, Ogden sued Gibbons, claiming exclusive rights to navigate between New York and New Jersey. Gibbons maintained that the New York laws conflicted with the Constitution and the laws of the United States. After action in the lower courts, the case was brought before the Supreme Court.

New York claimed that steamboat travel had nothing to do with commerce, and that commerce had to do with buying and selling alone, therefore New York was not in violation of the Constitution.

In his decision, Chief Justice Marshall declared that New York had interpreted the term commerce in the Constitution restrictively; that commerce had to do, not only with buying and selling, but with the manufacture and transporting of goods as well. Terms in the Constitution, he stated, must be interpreted expansively. New York's understanding of commerce, he ruled, "would restrict a general term, applicable to many objects, to one of its significations".

This, then, is the principle which emerges from this case: constitutional terms must be interpreted expansively, not restrictively. What are these terms? Any term in the Constitution: in this case, the terms commerce, regulate, provide, but that can be applied to other terms as well, person, for instance. In Roe v. Wade, Justice Blackmun laid down that the term person in the Constitution does not apply to the unborn. That is a restrictive application of the term person and restricts "a general term to only some of its significations". This is an invalid and unconstitutional application of the term.

THE SECOND PRINCIPLE emerges from the doctrine of non- enumerated rights, included in the 9th Amendment of the Constitution and recognized by the Roe v. Wade decision. In the case of Roe v. Wade, the right to privacy was laid down as a basic non-enumerated right embodied in the 9th Amendment, and Justice Douglas in his concurring opinion mentioned several others. The question is now, in the light of Roe v. Wade itself and the case of the unborn, is there another, more comprehensive right, which includes, as parts in a whole, not only the right to privacy, but every other right protected by the Constitution? Is there a right, so comprehensive in its scope, that it resolves the question of whose rights are threatened in the case of abortion, in the light of which, the question of the rights of the unborn is resolved constitutionally?

And that is where the history of constitutional law itself enters into the picture, from its origins in Spanish America in the 16th century to the passing of the Constitution of the United States and the Charter of Human Rights of the United Nations. For there is a basic right, a basic human right, applicable to every human being, which is the root and foundation of all other rights, the violation of which brought forth the very concept of constitutional law and laid down the principles upon which the Constitution of the United States is based. That right is the right of dominion, the non-enumerated right which contains all other rights, and without which none of them is secure and none of them embraces the human being in his or her totality.

The right of dominion is the basis of all constitutional government and declares: as a human being, I have dominion over my total person, as well as the free exercise of that dominion, a right given to me, not by any law or government, but by the very fact that I am a human being. The primary purpose of all human law is to safeguard this right, to secure it when denied or ignored and to safeguard it when threatened. The law does not create this right, and so it has no power to interfere with it, to restrict it or to take it away, except for the commission of some crime which is a danger to the exercise of this right in others.

The right of dominion is my right over my total person, not only my right to life, but my right to. my hand and my foot, to every part and portion of my being, and of those things I need to live and enjoy normal human existence: my breath, my land, my home, my possessions, and all of those things that are an extension of my person in the exercise of this right of dominion.

When we speak of freedom, we mean freedom to the right of dominion over my person, in my beginnings as a human being and in those stages of human growth by which I emerge into the human community. I and only I have dominion over my person and the right of dominion is the basis of all government, including the government of the United States. The Law of Dominion states: every human being, by the very fact that he or she is a human being, has total and exclusive dominion over the totality of his or her person. The purpose of law is to recognize, further and safeguard this right and to give the protection of the law when this right is denied, ignored or threatened.

This, then, is the foundational right imbedded in the Constitution of the United States, the basic non-enumerated right which is the basis of all other rights, enumerated and non-enumerated. The doctrine of non-enumerated rights has been made part of American Constitutional Law and it is part of the judicial process and of litigation in the courts to identify these rights and to make them part of the constitutional inheritance of the United States. That, in itself, is an ongoing process and reached a certain judicial watershed in Roe v. Wade.

But now a THIRD PRINCIPLE emerges, never recognized before, because before the question of the unborn entered the legal arena, the principle had no application. In the case of the unborn, there is a double dominion, a divided dominion, unique in human life and unique in jurisprudence, because of the very nature of embryonic life. There is nothing in law that parallels this case and there is no principle in constitutional law to cover it. And that is where constitutional law looks to collateral bodies of law to find patterns, or parallels or precedents relating to divided dominion.

There is such a parallel and there is such a precedent and. it is found in a section of law called the Law of Bailments, a section of law taken from English Common Law and commented upon with great clarity by Joseph Story, the constitutional genius of early American law and himself an Associate Justice of the Supreme Court in the days of John Marshall.

"Bailments" is defined as the divided dominion of personal property which contemplates custody in one part and ownership in another.

Now this description exactly parallels the relationship of mother and child in the process of gestation and it exactly describes the legal and constitutional issues involved. As in the Law of Bailments, when a trust is set up with a bank, the bank has a trust-dominion over the property or money placed in trust, the one setting up the trust has absolute ownership, that relationship carefully defined by law and carefully monitored by law.

In the case of the unborn: the mother has a trust-dominion over the child, just as she has over children already born; the unborn child has absolute dominion, and there is already a principle of Common Law governing this relationship: qui in utero est pro jam nato habetur, quoties de ejus commodo quaeritur: one who is in the womb is held as already born, whenever a question arises for his benefit. (I Bl. 130).

From this and from the empirical facts of over 200 embryonic sciences, a new legal definition of unborn life can be demonstrated and defended, as the basis for deciding future cases:

A human subject in a state of somatic organizational and developmental repose, with an integrating and organizational principle distinct from and separate from. the body of the mother. We can show that a body of empirical evidence shows that the integrating principle is a human person in the unfolding of its innate human powers, gradually experiencing, expressing and revealing the blossoming of its distinctly human powers.

From this legal reasoning and from this body of empirical evidence, the legal mind can then defend in the legal arena that there are three juridic moments of the human person, each one with its own laws and its own legal safeguards, based on the human condition of the human subject involved:

1) the autonomous moment of adulthood:

2) the pedagogical moment of childhood: and

3) the embryonic moment of the unborn.

That is how the ten principles of constitutional law that I listed in the beginning were identified and made part of our constitutional inheritance. But it takes a legal mind, immersed in constitutional law, in the text of the Constitution, and in every major case adjudicated in the courts, to align this new frontier of law with the accepted inheritance of law. Such was Daniel Webster, who argued Gibbons v. Ogden and other classic cases; such was Abraham Lincoln, who saw clearly the constitutional issues in the slavery question; such was John Marshal Harlan, whose dissent in Plessy v. Ferguson laid down the principle that brought about the reversal of that decision; such was Oliver Wendell Holmes, Jr., whose dissents in Lochner v. New York and Hammer v. Dagenhart brought about their reversals, and such was Louis Brandeis, whose "Brandeis Brief" in Muller V. Oregon pioneered a new era of constitutional law and of social legislation, breaking the back of "court-protected capitalism" which had dominated Supreme Court decisions up to that time.

We are entering a new era of constitutional law: the emergence of embryonic law as a part of our constitutional inheritance, and what is demanded in this legal and constitutional effort is something resembling legal genius, to draw from the Constitution itself and from our constitutional history, the principles that will make the rights of the unborn an integral part of our constitutional inheritance.


1) cf. "Daniel Webster: The Man and His Time" by Robert Remini, W.W. Norton Co., N.Y., 1997, pgs. 201-208. U.S. Supreme Court 1824, 22 U.S. (9 ..h-a,.) 1, 6 L. Ed. 23.

2) cf. "Address at Cooper Institute, New York City", Feb. 27, 1860, included in "Abraham Lincoln: Speeches & Writings 1859-1865", The Library of America, 1989, pgs. 111-130.

3) cf. "Simple Justice" by Richard Kluger, Random House, N.Y., 1975, pgs. 81-83; also "Constitutional Interpretation" by Harold W. Chase & Craig R. Ducat, West Publishing Co., St. Paul, MN, 1979, 2nd Edition, pgs. 7437744. Supreme Court of the United States, 1896, 163 U.S. 537; 16 S C- 1138; 41 L. E-5.

4) Supreme Court of the United States, 1918; 247 U.S. 251; 38 S. Ct. 529; 62 L. Ed. 1101. Chase & Ducat, op. cit., pgs 480-482.

5) Supreme Court of the United States, 1908, 208 U.S. 412; 28 S. Ct. 324

"Louis D. Brandeis: Justice for the People" by Philippa Strum, Schocken Books, N.Y. 1984, pgs. 114-131; "Brandeis: A Free Man's Life" by Alpheus Thomas Mason, Viking Press, N.Y., 1946, pgs. 248-254; "Of Laws and Limitations" by Stephen W. Baskerville, Fairleigh University Press, Teaneck, N.J., 1994, pgs. 145-148. Also, The Brandeis Brief", Supreme Court of the United States, October term, 1907, No. 107.

New Perspectives on the Defense of the Unborn as a Constitutional Issue


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