Monday is the 34th anniversary of the Roe v. Wade decision, in which a Texas law banning abortions was found unconstitutional by the Supreme Court.
Opponents of choice have always had to argue that the fetus is a person. You may find it instructive and/or fun to read the transcript of the original argument of the case, which took place on December 13, 1971. You can read even more discussion of the fetus’s personhood in the transcript of the reargument, which occurred on October 11, 1972. (The reargument was scheduled to allow Justices Rehnquist and Powell to hear what the lawyers had to say; it's clear that most of the other justices had already made up their minds.) If you have time, you might enjoy listening to Texas’s nonsensical claims by clicking the appropriate audio button on the Oyez web site.
Whether or not the fetus is a “person” could not then, and still cannot now, be considered a scientific question. It is a lexico-theological issue, over which hovers the religious concept of “soul.” In the first argument, lawyer Jay Floyd, appearing for Texas Assistant Attorney General Wade, slipped in that very word near the end of his allotted time. To their discredit, none of the justices challenged him.
In the second argument, Robert C. Flowers replaced Floyd. Early on, Flowers said “... it is the position of the state of Texas that, upon conception, we have a human being; a person within the concept of the Constitution of the United States, and that of Texas, also.”
Justice Potter Stewart jumped on this statement: “Now how should that question be decided? Is it a legal question? A constitutional question? A medical question? A philosophical question? Or a religious question? Or what is it?”
Flowers waffled by placing that decision on the shoulders of first, “the legislature,” and, ultimately, the Court. The justices let Stewart’s pointed query die a-borning. He raised it again later, but Flowers continued to pass the buck. The Court cravenly ignored the religious implications; there was not even a pregnant pause. No one on the bench pointed out that none of the framers was a fetus.
If you don’t believe in a soul, you’ll have trouble accepting the personhood of a bundle of microscopic goo. Yes, it contains human cells, the building blocks of a person. But a Lego set isn’t the Taj Mahal.
A toenail clipping, a stray hair, an invisible droplet of saliva—all of these contain human DNA. Are they persons? Not to anyone who’s sane.
Soldiers, on the other hand, are clearly persons. But again, only to those who are sane.
Unfortunately, sanity may no longer be a desideratum, as it was when Roe v. Wade was correctly decided. Today, a son of Texas, having attained high office, has honed irrationality to an art. He opposes the aborting of cell clusters, as his state’s governmental forebears did, but asks the American public to extol the aborting of young people in uniform.
If Justice Stewart were still alive, he might wonder: "Now how should that question be decided? Is it a philosophical question? Or a religious question? Or what is it?”