The Personhood of the Fetus

All but ignored in the Dobbs arguments was the issue of whether the living, developing, and growing human child in the womb of her mother has the right to life guaranteed to persons in the text of the Constitution as well as in the text of the Declaration of Independence.


In the arguments before the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization1 on December 1, 2021, there was one major issue that was all but ignored. The attorneys for both sides as well as the Justices all seemed to assume that an overturning of Roe v. Wade2 would result in the matter of abortion regulation being left to the state legislatures.

The late, great Justice Antonin Scalia had that view, and voiced it in his separate opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey. 3 After asserting that the United States Constitution does not contain the right to abortion, he went on: “The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”4 Leaving the matter of protecting of the lives of God’s littlest children to the mercies of the fifty individual state legislatures, however, would seem to be a problematic solution at best.

All but ignored in the Dobbs arguments was the issue of whether the living, developing, and growing human child in the womb of her mother has the right to life guaranteed to persons in the text of the Constitution as well as in the text of the Declaration of Independence.5

That right-to-life issue lay at the heart of the constitutional ruling in the original Roe v. Wade decision. Justice Blackmun, writing for the majority, dealt quite clearly (and quite wrongly, as we shall presently argue) with the constitutional right-to-life issue in his majority opinion in Roe v. Wade, where he wrote: “The appellee and certain amici argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. 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.”6

Justice Blackmun then went on to list every usage of the word “person” in the Constitution, and drew the conclusion that none of those usages (and these are Justice Blackmun’s words) “indicates, with any assurance, that it has any possible pre-natal application.”7

Was Dred Scott a “Person”?

Interesting question. Was Dred Scott a constitutional “person”?

It is in the context of the denial of personhood to the living, developing and growing prenatal child that a telling analogy has been drawn between Justice Blackmun’s denial of constitutional personhood to fetuses in his Roe v. Wade opinion in 1973 and Chief Justice Taney’s denial of constitutional personhood9 to blacks, slave or free,in his now rightly condemned Dred Scott v. Sandford10 opinion in 1857. These are Chief Justice Taney’s words: “Neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as part of the people, nor intended to be included in the general words used in that memorable instrument ( i.e., the Constitution).”11

There have only been two times in the entire history of the United States Supreme Court when the Court has denied constitutional personhood to any classes of human beings. The first time was the Dred Scott decision in 1857 and the second was the Roe v. Wade decision in 1973. Chief Justice Taney was surely wrong in his denial of constitutional personhood (or to be more literal, “constitutional peoplehood”) to blacks, slave whether they had become free or not.

Was Justice Blackmun similarly wrong in denying constitutional personhood to prenatal human children living in the protective wombs of their mothers? Was his textualist quest for some assuring word in the Constitution that might have “possible prenatal application” sound reasoning? Sound or not, it is the currently operative case-law precedent. Justice Blackmun’s must be met with an effort to find, somewhere in the text of the Constitution, a reason why the rights inherent in constitutional personhood should be understood as encompassing prenatal children in the protective wombs of their mothers. Perhaps Justice Blackmun missed some textual reference in the Constitution.

Personhood and the Preamble to the Constitution

When Justice Blackmun, in his Roe v. Wade majority opinion, listed every usage of the word “person” in the Constitution (before concluding that none of those usages “indicates, with any assurance, that it has any possible prenatal application”12), he actually neglected one usage—a usage that happened, ironically, to be the one seized upon more than a century earlier by Chief Justice Taney. Justice Blackmun did indeed find every instance in which the exact word “person” appeared in the Constitution, but he neglected one variant of the plural form of that word “person”—the word “people.” The word “people” is found in the well-known and oft-memorized Preamble of the Constitution, here quoted in pertinent part: “We the People of the United States, in Order to … secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”13

The United States Constitution’s Preamble thus contains a clear indication that those who framed the Constitution wanted it to be interpreted in a way that secured the “Blessings of Liberty” (which presumably would presuppose the blessings of life) not only to themselves but also to their yet-to-be-conceived posterity.

To phrase it a bit more clearly, those who framed and those who adopted the Constitution seemed to be saying in their Preamble that, if a question should arise as to whether a provision of the Constitution should be interpreted in a way in which the interests of yet-to-be-conceived posterity would be taken protectively into account, or in a way in which those interests would be essentially ignored (or worse, denied), the former interpretation should be the one adopted. That, according to the Preamble of the Constitution, was the purpose and intent of the framers of the Constitution and the purpose and intent of those who adopted the Constitution, i.e., the People of the United States of America. The framers and those who adopted the Constitution intended to secure to themselves, and to their yet-to-be- conceived Posterity, the “Blessings of Liberty,” including (as one must) the right to life, so that those blessings could be enjoyed by yet-to-be-conceived “Posterity.”14 Possible tentative conclusion? The very text of the Constitution itself supports a fetal-personhood right-to-life interpretation.

But wait. To be practical and to “give the devil his due,” one must acknowledge that it would be disingenuous in the extreme to suggest that the word “Posterity” somehow refers exclusively to prenatal children in the protective confines of their mothers’ wombs. Quite obviously the framers and adopters of the Constitution intended the word to refer to the generations yet to come, i.e., the descendants of the people of the United States of America (and doubtless not even in an exclusively biological sense). In that context, however, and even with that gloss of understanding, the clause represents a textually specific indication that the Constitution was intended, and presumably should be understood and interpreted, to secure the “Blessings of Liberty” to descendants as yet unconceived. Indeed, it is not disingenuous to suggest that the Constitution places two classes of people on a par in terms of entitlement to the “Blessings of Liberty,” i.e., “ourselves” and “our Posterity,” and the word “Posterity”15 is difficult to define except in terms of yet-to-be-conceived persons. To put the matter quite simply, from a textualist perspective, the conclusion seems inescapable that one of the purposes for the establishment of our Constitution, identified as such in the Preamble, is to secure the “Blessings of Liberty” to yet-to-be-conceived-persons who, once conceived, become a living, developing, and growing member of posterity.


Here is the point: When Justice Blackmun wrote that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible prenatal application,”16 he was incorrect. He had neglected the usage of that variant plural of the word “person” that appears in the Preamble— “People”—and its association with “Posterity.” His conclusion that none of the usages of the word “person” in the Constitution “indicates, with any assurance, that it has any possible pre-natal application” is incomplete and therefore flawed—he did not analyze the implications of the inclusion of “ Posterity” in the “We the People” formulation in the Preamble—and this harks back to his statement: “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 (Fourteenth) Amendment.”17

One apparent difficulty with this argument from the Preamble is that, according to more or less settled case law on the use of preambles, the preamble cannot be used as an independent source of rights and powers, but can only be used to elucidate those which do appear in the main text of the law in question.

The difficulty, however, is only apparent. The pro-life position is not that the Constitution’s Preamble is an independent source of a constitutional right to life inhering in human fetuses. The pro-life position points first to the two constitutional guarantees of the right to life to persons in the text of the Constitution,18 and then, as is permitted, uses the Posterity-in-the-Preamble argument to elucidate, or shed light on, the meaning of the word “person,” by demonstrating that the Ordainers and Establishers of the Constitution wanted the Document to be understood into the indefinite future to be as much “posterity”-oriented as “selves”-oriented—an intent not unlike the intent undergirding the familiar Golden Rule,19 and which undergirds an oft-employed ethical “honest-doubt” principle (discussed below).

Under this analysis, the Court, when faced with an interpretive question which could be resolved in a way in which the concept of “posterity” is (1) taken positively and protectively into account, that is, an interpretation which is posterity-oriented, at least in part, or (2) ignored or treated negatively, would in light of the “Blessings of Liberty” clause ordinarily choose the former. This argument is more negative than positive in its casting, stressing only that interpretations which ignore or treat negatively the interests of posterity, or which fail to put posterity on the same level as “selves,” are very likely not in accord with the spirit of the Constitution. It does not suggest that posterity has some affirmative constitutional claim to rights or entitlements.

As applied to the Roe decision, however, the argument carries some force. In Roe the Court was faced with at least two plausible choices,20 one of which (extending Fifth-and-Fourteenth-Amendment right-to-life coverage to prenatal children) was posterity-oriented in that it would have taken the interests of a portion of posterity positively and protectively into account, and the other of which (denying Fifth-and-Fourteenth-Amendment right-to-life coverage to prenatal children) could hardly be said to be posterity-oriented or to put “Posterity” on the same level as “selves,” in that it recognized no protectable interests of the portion of posterity in question (it did, however, recognize a severely qualified and conditioned interest of the government in “potential” human life). The Court chose the latter interpretation, and in doing so (so the argument would go) was not in accord with the spirit of the Constitution as informed by the “Blessings of Liberty to … our Posterity” clause of the Preamble.

And finally, even aside from the text of the Preamble and the Fifth and Fourteenth Amendments, an “honest-doubt ethical principle” expresses a very basic moral sentiment that is ingrained in natural-law theory, and (one might suppose) in any system of ethics worthy of the appellation (not to mention in ethical common sense): If there is an honest doubt as to whether any given entity ( e.g., a slave, a former slave, a prenatal human being) is a person, any truly humane and civilized society ought to resolve that doubt in favor of personhood rather than against it.


1 Pending United States Supreme Court case # 19-1392; argued December 1, 20121. Issue to be decided: Whether all pre-viability prohibitions on elective abortions are unconstitutional.

2 410 U.S. 113 (1773).

3 505 U.S. 833 (1992).

4 505 U.S., at 980, Scalia, J., concurring in part and dissenting in part (emphasis in original).

5 U.S. Const. amends. V (“No person shall . . . be deprived of life . . . without due process of law . . ..”) and XIV § 1 (No State shall . . . deprive any person of life . . . without due process of law . . ..”). The “unalienable” right to life is guaranteed as well in text of our Nation’s Declaration of Independence ¶ 2 (“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 . . .. ).

6Roe, 410 U.S., at 156-157 (emphasis added).

7  Id., at 157 (emphasis added).

8 For example, eligibility to be a Representative (Article I, sec.2), a Senator (Article I, sec.3), a President (Article II, sec.1), etc., etc.

9 To be fastidiously literal, Taney denied people-hood to all persons who had been imported as slaves whether they had become free or not, “people” being an alternative plural form of the word “person.”

10 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

11 Id., at 407 (1857) (emphasis added).

12 Roe, 410 U.S., at 157.

13 U.S. Const. Preamble (emphasis added). Although the Preamble may not be resorted to as a source of constitutional rights, it may be resorted to as an aid in interpreting the meaning of rights that are expressly mentioned in the main body of the Constitution, e.g., the meaning of the Rights to Life in the Fifth and Fourteenth Amendments. See Joseph Story, Commentaries on the Constitution of the United States §§ 218, 219, at 163-64 (abridged ed. 1833).

14 The argument that a fetus might be a member of “posterity” first appeared in James Joseph Lynch, Jr., “Abortion and Inalienable Rights in American Jurisprudence: A Prospective Policy” (Unpublished Lecture, 1987); referred to in James Joseph Lynch, Posterity: a Constitutional Peg for the Unborn, 40 Am. J. Juris. 401, 401 (1995). See also Raymond B. Marcin, “Posterity” in the Preamble and a Positivist Pro Life Position, 38 Am. J. Juris. 273, 293-94 (arguing that attentiveness to the interests of fetuses (yet-to-be- conceived “posterity”) is consistent with John Rawls’s “Justice Between Generations” in his A Theory of Justice 251-58 (Harvard Univ. Press, rev. ed. 1999) (1971).

15 Webster’s Third New International Dictionary defines “Posterity” as “the off-spring of one progenitor to the furthest generation” or descendants,” and cites and quotes the “blessings of liberty” clause in the Preamble to the Constitution as its example.

16 Roe, 410 U.S., at 157.

17 Id., at 156-57.

18 U.S. Const. amends. V and XIV § 1.

19 I.e., Do unto others as you would have them do unto you. See Matthew 7:12.

20 A third choice, to leave the matter to the legislatures as the late Justice Scalia would have had us do. In that context, however, choosing to leave the matter to the legislatures would amount merely to a postponement of the interpretive problem. The constitutionality of the legislatures’ work products, be they pro-life, pro-choice, or something else, would still have to be assessed in light of the Blessings-of-Liberty Preamble and the Right-to-Life Clauses.

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About Raymond B. Marcin 2 Articles
Raymond B. Marcin is a Professor of Law Emeritus at The Catholic University of America School of Law. He has taught Constitutional Law for four decades and has co-authored The American Constitutional Order: History, Cases, and Philosophy (with Kmiec, Presser, and Eastman), 3rd ed. (Charlottesville, VA: LexisNexis, 2009).



    1. Roe vs. Wade:
    It is widely held in Conservative circles that Roe vs. Wade was an act of “judicial activism,” since the majority of the Justices in that case claimed to find a right in the Constitution that the Court had never before perceived, and a right that is not obviously stated, expressly or implicitly, in the Constitution.

    2. Irony or Hypocrisy?
    If a majority on Court were to declare now that they have discovered in the Constitution that human fetuses have a right to life guaranteed by the Constitution, a right that no majority on the Court has ever before noticed as being in the Constitution, this would, ironically, be yet another act of “judicial activism.” At least many scholars, including many Conservative scholars, would voice that opinion.

    3. Originalism and Strict Constructivism:
    When Roe vs. Wade is overruled by the new Conservative majority on the Court, they will probably rely on the judicial interpretation doctrines of Originalism and Strict Constructivism to do it. I.e., they will say that the right created by Roe vs. Wade just isn’t really in the Constitution.

    4. The Court is Not Authorized:
    The Supreme Court is not authorized by the U.S. Constitution to enforce principles of Natural Law, Moral Law, Divine Law, or Moral Theology.

    5. Turn a Blind Eye:
    The U.S. Supreme Court must turn a blind eye to those principles; it must just enforce the Constitution given to us by the Framers, and as lawfully amended by the formal amendment process.

    6. In a Catholic Nation:
    In a Catholic Nation, the supreme court would enforce principles of Natural Law, Moral Law, Divine Law, and Moral Theology.

    7. “We’re Not in Kansas Anymore”
    But the Framers were not Catholics, and this is not a Catholic Nation.

    8. “Strangers in Strange Land”
    In this regard, we Catholics are kind of like the Hebrew people living in exile in Babylon. We are aliens in our own country. We have to accommodate ourselves to a Protestant-Freemasonic nation.

    9. Amend the Constitution:
    When Protestant social activists wanted to outlaw the drinking of alcohol, they had to get passed an amendment to the Constitution, which they finally achieved in 1920.

    If Catholics want the national law of the U.S. to be that human fetuses have a constitutional right to life, we must get passed an amendment to the Constitution.

    If liberals want the law of the U.S. to be that human fetuses have no right to life, and that any pregnant woman has the right to an abortion, they must get passed an amendment to the Constitution.

    That’s just the system that the Framers gave us in the Constitution, and even many Conservative legal scholars say that.

    10. When Liberals Regain a Majority on the Court:
    Professor Raymond B. Marcin wants the Supreme Court to create a national right-to-life law for human fetuses by means of judicial activism.

    But if that occurs, how will Conservatives ever again make a principled argument against judicial activism when the liberals once again get a majority on the Court?

    • Really?

      You forgot to add science in the laws that, in your mind, the man-made laws of the Constitution forbids?

      What then is this human classification of the fetus that you decry is being upheld only by a conservative activism and not the truth of plain science and therefore needs amendments and non-science, non-Catholic jurists because this is not a ‘Catholic’ country nor one guided by science or the natural law? Where in the Constitution is the entire Natural Law forbidden as the Natural Law is espoused in the Declaration?

      What then is this new classification of a fetus that is malleable in regard to life and always needed an amendment – according to you – that never was or could be a first principle as stated in the Declaration…which, apparently, is in total opposition to the Constitution?

      Comparing drinking alcohol to the humanity of the unborn?

      Where are these credible ‘conservative legal scholars who say ‘that’? What science books are these ‘legal scholars’ consulting in denying the humanity of the fetus and therefore the willful destruction of the same is lawful because the Constitution must have an amendment contrary to science?

      No other legal way, because it must be ‘activism’, in recognizing life in the womb? If it’s not life, what is it? If it doesn’t deserve protection, why? If it only becomes a ‘being’ after exiting the birth canal, why is it not a being thirty seconds before?

      You really want to make the argument on a ‘conservative activism’ because you recognize a precedent-less Roe v Wade and the absurd legal reasoning of Blackmun as not an extreme activism made out of whole cloth and not in desperate need of an amendment that denies life?

      Being well aware of the process of an amendment, you actually want the status quo of the activist new ‘right’ of abortion to continue because the Constitution must be upheld as framed? By whom? As you see that these ‘scholars’ naturally see abortion but human life is not recognized?

      This is the absurdity as you define it? That the Constitution, not informed by the Declaration, does not recognize life in the womb but must have an amendment to create and recognize it?

      Are you so certain of the writers of the Constitution did not take as a matter of common sense and the lack of arguments in the Federation arguments that pregnant life is life?

    • RE: Nos. 4,6,7. The Kansas Constitution Bill of Rights, § 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

      No point in particular, just a note.

      • For this comment, this is my ending sentence : Kansas has a solid legal footing.

        The accounts of the decision-making processes in the US Supreme Court for Roe v. Wade and other cases reveal a highly dynamic form of consensus-building. In our present time it is realistically described by Justice Breyer; and you will find this in the interview he did with David Rubenstein September 2021 Bloomberg -see the first link.

        In summary he says that decisions must be on “common ground” and reflective of what is “trending” and “desirable”.

        In the case of Roe the majority started on a series of points that weren’t really meant to be final, only “positional”; so as to allow the protagonists to draw in this or that extra vote. Eventually they concluded on new things not even present in the beginning.

        Bob Woodward and Scott Armstrong in their book The Brethren (Simon & Schuster NY 1979) give an up close account of how things went and which justices were being targeted to add weight to the end result.

        What eventually got produced is not from principle, not even from a style of interpretation like Textualism or Originalism. It was instead the product of searching for a medial position through exchange and revision of drafts, relinquishment of obstacles/differences and ushering of nuances.

        What is the Court doing for the Dobbs case? We can only guess for now. In the second link you will find Breyer asserting that decision must be “on principle” and not giving in to “political pressure”. The word “principle” at this present time is getting thrown into a tumble.

        Also, presumably, for Breyer at least, “political pressure” is something that does not reflect anything “desirable” or “common”. The rationale would likely be for avoiding throwing society into turmoil.

        In my estimation the pro-death camp is approaching falling into disarray. And my advice is, now is not the time for any part of pro-life to ease back but the opportune moment to press forward even harder, more formatively and with a more intense imagination. Let’s be more prolific. Bring up more ranks!

        Anticipate the shapes of the collapsing formations, as it were; and go to those places.

          • I think this description, in the link to KS Courts website, “Supreme Court announces decision in Hodes & Nauser v. Derek Schmidt”, of what happened in the case, fairly describes the disorder the judges fell into in the face of the single word, LIFE; dodging it with every technique and invoking all the words in the dictionary to their side all the way back to Magna Carta.

            So Rufous, are you advocating surrender?


          • Rufous, what about the multiple major legal errors in the judgment – utter malpractice not even anything intrinsically to do with abortion or life or pro-life or the particular legislation?

            A recessed approach is not storming the field and is disobeying a direct and immediate command.

          • Kansas has strong legal footings I say. Look at the interest Kansas has in its own public affairs; re the HAYS POST link “Kansas AG to appeal ruling blocking ban on abortion procedure”, July 8 2021.

            Hodes was decided 6 to 1. Caleb Stegall made a very sobering comment in his dissent. But besides him there are more judges through the whole community who are against the decision – Rufous seems to make them non-existent.

            Stegall is quoted in Ballotopedia, “Kansas No Right to Abortion in Constitution Amendment (August 2022)”.

            ‘ “Today we issue the most significant and far-reaching decision this court has ever made. The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state … In the process, the majority abandons the original public meaning of Section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.” ‘

            The same link has 2 very insightful maps for study. One gets the clear impression Roe was decided for activists and not for States.

            This is no place for shy men.



          • In “law” like Roe, there can be found many rabbit-holes that lead the way down to Quibbledom. One of these is “compelling state interest”. These rabbit holes are for the advantage of social and medical activists and legal confidence tricksters.

            As you read this link to “The Roe v. Wade Deception”, by Chris Rostenburg, HUMAN LIFE REVIEW, keep in mind that Warren Burger did not take a a position of primacy in Roe. Burger assigned the role to Blackmun who crafted the final product and himself took a very active protagonist stance.

            During the process Burger appeared to be dissenting but then ultimately wrote his own “concurring” opinion with the majority. It could have been been a well-concealed rear-guard type of antagonist activity except that Douglas found it very frustrating and remonstrated aloud about it.

            In his “concurrence” Burger said he thought that it would be “permissible” for a State to allow two doctors to decide if an abortion could proceed -see under Concurrences in the WIKIPEDIA article Roe v. Wade.

            Abortion is crime; but in real law there are other crimes and you can commit those crimes without yourself committing any actual abortion.

            ‘ Pennsylvania lawmakers, referring to the “compelling state interest” in protecting “potential life,” later passed a law requiring that a second doctor be present at the abortion of a viable child to care for the infant should it be accidently born alive. The abortion industry opposed this law, and in Thornburgh v. American College of Obstetricians and Gynecologists (1986), the Supreme Court ruled against the viable unborn child. Chief Justice Warren Burger dissented, writing sardonically, “Undoubtedly the Pennsylvania Legislature added the second-physician requirement on the mistaken assumption that this Court meant what it said in Roe concerning the ‘compelling interest’ of the states in potential life after viability.” ‘



          • There are many legal pitfalls in the Hodes decision; and convoluted errors. I am not finding critiques on the case, in the media – perhaps because it is under appeal? Perhaps because Dobbs isn’t decided yet?

            If this is left unaddressed it is informing Dobbs in a very driven way.

            Is Schmidt to campaign alone? How many pro-life people are involved? How many Catholics?

    • Exactly. This article is a bit of an embarassment. None of the founders thought that the document they were writing would apply to babies in the womb. If it did, then babies in the womb would have a right to privacy in their HOUSES, as the 4th amendment give “persons”. (How many unborn babies do you know that own a house?) Babies in the womb would be free from unreasonably searches of their PAPERS and persona effects. Babies in the womb would have the right NOT TO INCRIMINATE themselves under the 5th Amendment.

      You see how silly this all is. The Constitution NEVER intended to give these rights to unborn fetuses. They only imagined these rights would flow to people who were born and walking around. So this argument is a bit of silliness.

      Now, if you want such a right to be established, you need to get an amendment to that effect added to the Constitution. But don’t make up elaborate, uconstitutional nonsense about it already being in the constitution. Making such a case is EXACTLY the sort of thing that Justice Blackmun did when he invented the right of abortion.

  2. In the eighteenth and nineteenth centuries, a woman convicted of a capital crime could claim a delay in her execution if she were pregnant; a woman who did so was said to “plead the belly”. In Ireland, on 16 March 1831 Baron Pennefather in Limerick stated that pregnancy was not alone sufficient for a delay but there had to be quickening. (To be able to feel the movement of the fetus)

    The plea (Pleading the belly) was available at least as early as 1387 and was eventually rendered obsolete by the Sentence of Death (Expectant Mothers) Act 1931, which stated that an expecting mother would automatically have her death sentence commuted to life imprisonment with hard labour.#

    The Catholic Church points us to ultrasound and to the irrelevance of quickening while nowadays many of us will have seen the fertilization of the female egg by sperm on TV and subsequently, the cells dividing at a quickening pace to form the basis of a new life (conception). It seems in bygone times a quickening was confirmed by the midwives being able to feel movement in the womb but now we can now actually see a quickening (Movement) taking place at conception.

    From my perspective there is no need to take this any further our Catechism teaches the beginning of life as hominization (ensoulment) upon conception.
    I have made this comment on many sites, directed at both sexes, which goes to the heart of the matter, as it is ‘innately’ known within all honest hearts.

    “I wonder if anyone who reads this has the honesty and courage to serve the Truth by acknowledging that at some time in their life, they have felt the natural inclination of a tinge of sadness or/and been aware that they have participated in the possible loss of a new life through an act of using a method of contraception”

    No one ever responds I wonder why.

    kevin Your brother
    In Christ

    • Addendum to my post above
      Oh’ little candle burning in the night
      Who did light your pure white light?
      Was it, Mother’s joy, Father’s delight?
      One warm and tender loving night
      Or was it, Adam’s apple, their sensual delight
      That set you a burning in the night
      I’m a little candle burning in the night
      No one can see my pure white light
      Cane and Salome are the idiom of the day
      They would have my form melt away
      Oh’ little candle in the night
      You have an angel ever bright
      Guardian of your blazing wondrous light
      Lit from above, ever shall you reflect his love
      Herod reigns, Rachel weeps no more
      Hearts of seasoned wood doe’s God abhor
      As seasoned wood weeps no more

      kevin your brother
      In Christ

    • The purpose of the comm-box is not the same as the confessional. The confessional box is private, the priest who hears confession is bound by sacred trust to honor its secrecy, and most importantly, confessed sins are absolved by God’s power and promise.

      Perhaps the question is rhetorically posed to impel some to confession.

      • Thankyou meiron for your comment “Perhaps the question is rhetorically posed to impel some to confession” I wrote the poem over forty years ago which reflects my heartfelt feelings of the injustice (Crime) of abortion with the sadness of the loss of a new life with all of its potential. Hopefully, this feeling/understanding will be transmitted to anyone considering having an abortion while also giving hope to those who have lost a baby for whatever reason to realize that the soul is never forgotten before God and so lives on in our Fathers House in heaven which was recently expressed so elegantly by a regular poster on this sight in relation to limbo “In my Father’s house they are many mansions”

        Blessing to you this Christmas time and always meiron
        kevin your brother
        In Christ

  3. According to William Winslow Crosskey in “Politics and the Constitution in the History of the United States (University of Chicago Press, 1953), The Dred Scott decision marked a watershed in U.S. constitutional law that began with the expansion of judicial review with Marbury v. Madison. According to Crosskey, judicial review was used improperly first to preserve and extend slavery, and then enhance the power of the Court itself.

    It comes as no surprise that the Dred Scott case came two years after the publication of David Christy’s “Cotton is King,” the most logically consistent (if still in error) defense of slavery in the U.S. Christy argued that the economic survival of the United States and the British Empire depended completely on the slave cultivation of American cotton — the single largest export from the U.S. from 1803 to 1937.

    Following the Civil War, the 14th Amendment was intended in part to overturn Scott v. Sandford but was itself nullified by the decision in the Slaughterhouse Cases of 1873. The question was whether the butchers of New Orleans (mostly former Confederate soldiers) could have their private property rights overridden and be forced to use the facilities of a state-sponsored monopoly under the control of a carpetbag governorment.

    As the first test of the privileges and immunities clause, the Court shifted the question from whether the natural right to private property of former Confederate soldiers was being violated, to whether natural(!) rights such as life, liberty, and private property are a grant from the federal government or from the individual states. This nullified the traditional Aristotelian-Thomist understanding of natural law and reinforced Justice Taney’s decision in Scott v. Sandford, all the while claiming to be conforming to the privileges and immunities clause of the 14th Amendment.

    According to Crosskey, the opinion in the 5-4 decision effectively gave the Supreme Court supreme power by allowing it to support the privileges and immunities clause when it suited them, and ignore it completely when it did not, thereby nullifying the 14th Amendment.

    Twenty years later Justice Stephen Field declared that both the majority and the minority — including himself — had been wrong, and that natural rights are inherent in each human being, not grants from the State; the State’s role (at all levels) is to define the exercise of rights (the natural law gives general norms only), not create them, thereby “creating” (or nullifying) personality.

    Crosskey died in 1968, but it is entirely possible that had he had the opportunity to comment on Roe v. Wade, he would have made the same argument that he did in his analysis of Scott and Slaughterhouse — to say nothing of the Court’s overturning Article 3 of the Constitution by trying a moot case. He might also have had a few words to say about how the Court based a certainty on an uncertainty by claiming that a fetus may or may not be a human being, but it is not a person as that term is used in the 14th Amendment — thereby affirming Scott by claiming that personality is a grant from the State, not God.

  4. You read my mind! The arguments against Roe did not hit the prime issue head on, and just left abortion in the morality realm where somehow the SCOTUS was not to venture but leave up to the states. Perhaps it’s a strategy to inch towards the final conflict, since the “right to abortion” needs to be eliminated first. I suspect that Roe will be overturned based on the discussions, and both sides will over interpret that outcome. Let’s assume Roe get’s overturned, I can see some states in the near future introduce more extreme abortion policies that will require abortions of disabled children for some sick reason.

    I’ll take an overturned Roe over the alternative, but we must still stay vigilant for the unborn. We must overcome the fear that drives the desperation of abortion.

  5. Biology settles the issue of personhood. Conception is the beginning of a human life. Our lives are protected to some extent by exterior circumstances for most of our time on earth. Few “viable” humans can live independently for some years after their viability is recognized. We all require some assistance in maintaining our lives throughout their course. We need someone to grow our food; someone to harvest it; someone to deliver it to our groceries; someone to manage the stores . . . well, the point is obvious without even considering healthcare (which doesn’t include killing us), education and workplaces that allow us to earn the means to pay our way. When we are older, there are people (family or paid staff) to assist us in living until we die. The “rugged individual” is mostly a myth. We truly need one another throughout our lives. Our “viability” depends on one another.

    • Well, finally! A perspective from a woman! Biologically? Let’s amplify on that word- in case this biological fact is overlooked- or forgotten- or worse, considered inconsequential: Human life is created in the womb of a WOMAN- internally— and gestates for approximately 9 or so months. A man’s contribution is only from the exterior- and lasts for all of a few seconds. I get so weary of all these men pontificating morally, ethically, legally- when there are 3 entities involved- remember?
      (I’m a mother of 6 children, one deceased, never practiced artificial birth control- but fellow women, if you have.a need, go for it! Don’t let a man’ judgment control your life- fir it’s yours too- and you’re the one most likely, with the major burden of care.

  6. Jurists have argued that we become persons when our umbilical cord is cut. That sounds absurd because it is absurd. That a pair of scissors determines our right to live. That is not the outcome of just reasoning, rather the amoral choice of a heartless functionary I reckon who will receive the same at Judgment.
    Professor Marcin strikes me as brilliant, moral, and intellectually ordered. By this last I mean an intellect cultivated to identify fallacy v truth. His posterity argument, couched in the honest doubt ethical principle is the best I’ve read to defend the reality of personhood of a prenatal infant.
    I would add if we have an honest doubt regarding rights it is more justly adjudicated in favor of something as primary as life than not. Evidently, he knows the Constitution well and is versed in natural law ethics.

  7. The conflict created by the state pretending to have the authority to “legalize” the murder of innocent humanity is essentially a conflict between atheism and theism, particularly Christian theism. The conflict persists because the basic principles of Christianity are imperfectly put into practice by its adherents. A classic example of this imperfection was the toleration of “legal” slavery when the United States was founded. That the founding generation knew the enslavement of Africans couldn’t be reconciled with Christian theism was pointed out by none other than the Vice President of the Confederacy:

    The prevailing ideas entertained by him [Jefferson] and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day.
    – Cornerstone Speech
    Confederate Vice President Alexander H. Stephens,
    March 21, 1861, Savannah, Georgia

    Stephens was right about the founding generation believing that slavery was “in violation of the laws of Nature.” The reason the Constitution, quite temporarily in the eyes of the founders, “secured every essential guarantee to the institution while it should last” was that, as Stephens puts it “It was an evil they knew not well how to deal with,” and they were convinced it would soon be gone anyway. They were right that God’s Providence would end it, although they weren’t expecting that to happen through the unprecedented carnage of the American Civil War. As Lincoln put it:

    The Almighty has His own purposes. “Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!” [Mt 18:7] If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope — fervently do we pray — that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether” [Ps 19:9]
    – Lincoln’s Second Inaugural Address (1865)

    We can only speculate on what the result would have been if the founding generation had refused to ratify a constitution that allowed for “legal” slavery, but one can’t help but suspect that had they known that over 600,000 Americans would die in a civil war fought over slavery, they would have happily endured whatever negative consequences their rejection of slavery immediately brought about in order to spare their children and grandchildren the “woe” of that “terrible war” due to the nation “by whom the offence came.”

    Just as the founding generation knew the enslavement of Africans couldn’t be reconciled with Christian theism, Americans today know that “legal” baby murder can’t be reconciled with it either. What is different today is that the present conflict isn’t between those who misconstrue Christian theism and those who don’t, as it was with slavery; it is between atheists who blatantly reject Christian theism and those who embrace it.

    The resolution of the conflict over “legal” baby murder will either end it and in so doing ratify the principles of the founding generation regarding the very purpose of government, or finally finish removing those principles from American jurisprudence altogether, and for generations to come. (And eventually drawn down upon this nation the terrible wrath of God.) And what are those principles?

    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. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness … it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

    The very purpose of our government is to protect the God-given, inalienable rights of humanity, the first of which is the right to life itself. The atheists pretend our founding document has no legal authority. They must do that for the same reason the advocates of slavery were forced to pretend it had no legal authority: The Declaration of Independence can’t be reconciled with “legal” slavery or “legal” baby murder.

    John Quincy Adams repeatedly appealed to the legal authority of the DOI in the Amistad case. An excerpt from the transcript of his argument before the Supreme Court:

    I know of no law, but one which I am not at liberty to argue before this Court, no law, statute or constitution, no code, no treaty, applicable to the proceedings of the Executive or the Judiciary, except that law, (pointing to the copy of the Declaration of Independence, hanging against one of the pillars of the court-room,) that law, two copies of which are ever before the eyes of your Honors. I know of no other law that reaches the case of my clients, but the law of Nature and of Nature’s God on which our fathers placed our own national existence. The circumstances are so peculiar, that no code or treaty has provided for such a case. That law, in its application to my clients, I trust will be the law on which the case will be decided by this Court.

    The majority of the Supreme Court justices at the time were slave holders. In spite of that the Supreme Court had to acknowledge that there was a higher law to which even they were subject. Such was the force of Adams’ argument. An excerpt from the decision of the Court delivered by Justice Story:

    It is also a most important consideration in the present case, which ought not to be lost sight of, that, supposing these African negroes not to be slaves, but kidnapped, and free negroes, the treaty with Spain cannot be obligatory upon them; and the United States are bound to respect their rights as much as those of Spanish subjects. The conflict of rights between the parties under such circumstances, becomes positive and inevitable, and must be decided upon the eternal principles of justice and international law.

    The Supreme Court set the Africans free because there are “eternal principles of justice” to which even they were subject. Atheists acknowledge no such eternal principles, no such higher law. That is why they have no problem with “legal” baby murder. That is why to this very day jurisprudence corrupted by atheism denies that the DOI has any legal authority. The state has become what John Quincy Adams warned us about in his 1839 Jubilee of the Constitution discourse, in which he repeatedly contrasts the “the judgment of the sovereign constituent people, responsible only to God” and the “grossly immoral and dishonest doctrine of despotic state sovereignty, the exclusive judge of its own obligations, and responsible to no power on earth or in heaven, for the violation of them.” The latter is the case today, and profoundly so.

    It is time to reconsider the principles upon which this nation was founded. The people are still sovereign, still responsible to God, and therefore still have the “duty to throw off such Government, and to provide new Guards for their future security.”

  8. Hmm. Interesting, as always: Responses/ comments from 2 women and 9 men. Fairly typical lopsided discussion , considering the lengthy ( and historically a potential for life- threatening )“biological” process in which the woman is involved. Men expound from the head- legalistically; scientifically; religiously,…… and we women speak ( on occasion suffer) from the heart. Just another perspective- unfortunately one about which I don’t read or hear. From mom of 6

    • Half of the children killed are male.

      Not that that is why men have every right to address the issue. Every thinking human being is obliged to address it.

  9. The beauty of parenthood (Marriage) and its unifying bound the creation of a new life.
    “For this reason, a man shall leave his father and mother, and the two shall become one flesh”

    The TRUTH of this statement can be seen in any offspring they may be blest with, and this statement is truly life-giving. As the greatest gift we have received is the gift of life, given by God through the action of our parents, refusing to fully partake in His creation by deliberately denying another the opportunity of life, is sinful, and this sin is known ‘innately’ by all of mankind.

    From HV.20. “The teaching of the Church regarding the proper regulation of birth is a promulgation of the law of God Himself.
    And yet there is no doubt that to many it will appear not merely difficult but even impossible to observe”

    So yes, if we are, to be honest, is not this the reason why so many justify using contraception. But rather than accept their limitations before God, they have created self-serving consciences and in doing so they hide their nakedness (Shame) before Him, by hiding in the bushes and covering themselves with leaves (excuses). And in doing so stifle spiritual growth.

    There are many social, economic, and health reasons why people use contraception form downright selfishness to the other end of the spectrum one of very low income, poverty, bad housing, poor education, abusive marriages, mental health issues, substance abuse, HIV, broken relationships as in one partner refuses to have sex without the use of contraception, many of these are cultural Catholics and often poorly educated ones, who have never really committed to the faith, also for many in these badly fractured life situations, NFP is totally impractical.

    I have proposed a way forward to one based on humility, manifest by venerating the true Divine Mercy Image one of Broken Man, given by our Lord Himself to the Church, that has the potential within it to create unity of purpose, while encouraging spiritual growth, within the whole Church. Were this to happen it would draw in many Protestant denominations to the Catholic Church’s teaching on HV, in condemning contraception as sinful, as we would now have the means to create Unity of Purpose, based on our humility before God, rather than self-justification.

    So would it not be better, to be honest by those who use contraception and acknowledge the Truths within Humanae Vitae before God and the faithful just prior to receiving Communion, in that they cannot live to its demands through human frailty?
    And in doing so grow spiritually in confronting their own human frailty, which would most certainly, also encourage more births. This action would contribute to creating a truthful humble authentic Church before God and mankind.

    Mankind needs to see the light of the Holy Spirit dwelling/working within us, as only a humble Priesthood/Church can lead mankind away from evil, as a humble heart (Church) will never cover its tracks or hide its shortcomings, and in doing so confers authenticity (Holiness), as it walks in its own vulnerability/weakness/brokenness. It is a heart (Church) to be trusted, as it ‘dispels’ darkness within its own ego/self, in serving God (Truth/Love) first, before any other.

    We are ALL sinners but being honest with ourselves and others will permit us to walk in humility (friendship) with the Holy Spirit, where no deception or lie is tolerated within ourselves or between each other.

    kevin your brother
    In Christ

  10. About women. Granted you carry the burden. And granted you got us into this mess [Adam, as usual with irresponsible men, their irresponsibility pointed out in comments blamed Eve for his own transgression]. I’m not a mysoginist. Eve rationally seduced at the tree by the serpent thought she could become a god. Angered God found out castigated punished all involved. Then, to the serpent, Satan. I will place enmity between you and the woman. Between your seed and her seed.
    So a war had begun. Now God speaks of Eve’s seed. Usually it’s the male. Here it’s the woman who gives birth to new life. A portend here of a new spiritual seed the person of Christ. And that of Mary. And those who follow their pathway. She is the Woman, most exalted of all God’s creatures who is at true enmity with Satan and his seed. The enemies of Christ, and of women.
    As difficult, traumatic as it may be to carry an infant in the womb, give birth that trial added to our travail in this life is heroic, life giving, and not only Man’s hope for survival as a species, but as ordained for his humanness [what would we be without a mother’s love?]. Contraceptives, abortifacients, abortions are not answers, except for the rarer exceptions of traumatic fear, terrible poverty are rather in most instances retaliation. Or a mere cosmetic choice.
    What would Mankind be without the unique softening, and likewise strengthening presence of the feminine. How many of us look up to women rather than demean and humiliate them? How many of us truly love you?

    • Hello Fr. Morello,
      As a mother and grandmother who has now gained four precious grandchildren in less than three years, I feel that throughout history, “Mankind” actively disregarded all things womanly and feminine as you call it. Women were owned, as chattel~we could not inherit property. Women have always been in need of a defender, as historically, we have always been portrayed as easy victims! In fact, we have been called~~the Weaker sex. Folks disregard women, disrespect women with the greatest of ease. I speak from a life long experience, Sir. My own Dad graduated from the Catholic seminary. The only trouble was~in his first marriage. Mom gave him 5 girls, in six and a half years, the weaker sex. Stay well, ~*must we really refer to the lives that we women will bring about, give life to, … Thanks Sir. ~KM

      • Hello Kathleen. I guess gowing up in Brooklyn in a Sicilian family and community women were quite strong. And assertive. If I didn’t stand up and fight an aggressor my sister Rose let me know it. That said, I understand your complaint regarding men using women, although that isn’t entirely the case in history. I can only think of Joan of Arc inspiring and leading French knights into battle.
        For one, in sacred scripture it says, God created Man, male and female he made them. Man, means Mankind, you and I. My counsel Kathleen is don’t get drawn into the unprincipled feminism that finds any distinction in language or thought of male female as bigotry toward women. That all such reference must be expunged because we’re all equal. We are indeed all equal insofar as justice although we are in fact different. And that inherent God ordained difference is intended for societal cohesion as well as fulfilling our existence as who we are, always equal spiritually and justly before God, although in this life each of us, male and female having distinct features, characteristics, strenghts, roles to live out for both our humanness and our relation to our Creator.
        Be strong, be good, love who you are.

      • Is there any concern at God the Father and Christ the Son? Would some prefer Mother-god and Savior-daughter? Is there any issue with God creating man first and woman second?

        1) Children are carried and birthed by women, but men and women mutually agree to the process in the vast majority of cases.
        2) By statistical average, men are larger and stronger than women in physique.
        3) Anthropological studies show that men have gone out from home-base to fight and to hunt, probably because of their biological assets and logic-oriented, spatial skills (as opposed to stronger verbal skills in females).
        4)Psychological studies of children have repeatedly shown statistically significant differences in male-female gender behavior:
        a) small boys stray farther away from their mothers in exploratory behavior, while girls tend to stay close together and/or to their mothers.
        b) Boys tend to build towers and girls tend to build enclosures.

        These are biological and psychosocial differences observed in very young children. There is no such thing as perfect equality–if we had that, we’d be machines. Would that be preferable?

        As for Joan of Arc, the accusation of heresy and burning at the stake resulted from political strife and divisions. To claim that Joan was dishonored by men and by the Church is countered and canceled by Joan’s king granting her authority to lead, and many men fought willingly under her direction. The Church honored Joan with sainthood. Are these so little valued so as to negate their reality?

  11. To clarify, my wording mistakenly implies approbation. The text should read, “Contraceptives, abortifacients, abortions are not answers. And except for the rarer exceptions of traumatic fear, terrible poverty are rather in most instances retaliation. Or a cosmetic choice”.

  12. I might draw attention to our “We the people of the United States” phrase and ask again … who are THE PEOPLE? Are they to signify setting constitutional law for only those currently living at that time in the country?? Was it attempting to provide protective, guiding law for our next generation? I propose the answer is YES! For if the answer was NO, there would be little reason for stating such a position, the paper it was written on may as well be burned. It is not hard nor far-reaching to state the lives of American human beings mere months away from a new birth are afforded that protective claim.

  13. During the Visitation St John the Baptiste and Jesus link up inter-uterine via the joy of their mothers’ greeting one another. The latin is medical (of course!): “exsultavit infans in utero ejus: et repleta est Spiritu Sancto Elisabeth”. The Logos provided for the answers to the questions of the Apostasy?

  14. Hello Fr Morello,
    You have proven my point exceeding well, by mentioning the name of Saint Joan d’arc. The Catholic clergy plotted her execution in order to silence her. She was burned alive. God’s will I assume. Perhaps women are not always treated as equal? Not in this woman’s view, we are not. ~Sincerely, KM

  15. When a court has to correct an error made by one of its its own, the reversal of what is wrong and establishment of what is right, by the court, is not “activism”.

    This is true in both common sense and in basic jurisprudence everywhere.

  16. There is a matter those advocating for abortion have yet to answer. No two people have the same DNA. The fetus has a different DNA than the mother. The mother’s body is a carrier of a different life until birth.

  17. The word abortion means – crime. It necessarily entails it. They are concomitant and inextricable. Neither a court nor a legislature nor an executive nor a private entity nor a medical doctor, can administer/ administrate crime.

    It is not a problem in law of constitutional interpretation or legal formula – “person”, “privacy”, “rights”, etc. Any court etc., that makes “to allow abortion” is corrupting justice. For a doctor, he is corrupting medicine. And corruption is not solved by saying, “abortion is regulated by the individual States”. Abortion is crime uniformly through all civic dimensions and medical standard.

    What the US is facing is the problem of corruption at all levels simultaneously, in the Congress, the Supreme Court, the States, the judicial system and the courts, the State leaderships, the medical culture, educational processes, the US Presidency, the political culture and culture at large.

    It is not the society’s business to make abortion – crime – possible, for avoiding/relieving back-street abortion, by allowing a “clinical option in the name of health”; for this too is crime and corruption. The thought process that pushes that is not a benign one.

  18. “Eppur si muove” (“nevertheless, it moves”), said Galileo as he looked through his telescope at the universe without–but the politics of the day chose to see nothing. Now, in our scientific age (?), to look by ultrasound at the universe within–the politics on the day chooses to see nothing.

    What is the difference, if any, between burning Joan of Arc at the stake, and scalding to death with saline solution (the “Ultimate Solution!”) the pre-born child?

  19. ‘ At the end of the day, this Kentucky case study tells us again that abortion is special. Its laws do not play by the same rules as other laws, and its supporters don’t, either. State authorities need to have the right and the freedom to enforce state laws – plain and simple. Because when they don’t, all hell breaks loose. It’s been proven time and time again that pro-abortion officials cannot be trusted to enforce literally any law that curtails abortion at all (even when it stands to protect women). ‘

2 Trackbacks / Pingbacks

  1. The Personhood of the Fetus – Via Nova Media
  2. The Personhood of the Fetus – Columbus Catholic Corner

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