The Constitutionality of States Extending Personhood to the Unborn
Alec D. Walen
Rutgers School of Law, Camden
March 8, 2005
Constitutional Commentary, Vol. 22, pp. 161-179, Spring 2005
In 1992, Ronald Dworkin made a provocative argument that states cannot be given the liberty to declare fetuses to be persons. The argument can be represented as follows: Federal constitutional law recognizes a fundamental liberty interest in controlling “whether to bear or beget a child.” This liberty interest in choosing whether to bear a child implies that women have a legal right to choose whether to have an abortion unless the state has a compelling interest to the contrary. States have a compelling interest to the contrary if and only if either unborn humans are persons under the federal Constitution, or states can declare them to be, in effect, persons with rights under state law. Unborn humans are not persons under the federal Constitution. Moreover, if states had the power to declare unborn humans to be, in effect, persons in whose welfare they could take a compelling interest, they would thereby have the power to undermine federally protected constitutional rights. Such a power would be inconsistent with the supremacy of federal law.
My claim here is that Dworkin's argument does not actually help defend Roe. Despite the misplaced attempt to attack Roe for invoking a constitutional right of privacy, the real weakness in Roe is its claim that that “the unborn have never been recognized in the law as persons in the whole sense.” If this premise needs to be supported, then Dworkin's argument presupposes what it purports to support – namely, that states, and the federal government, are constitutionally barred from recognizing unborn humans as persons with rights. As a result, it begs the question. As a further result, the substantive holding of Roe – that women have a fundamental right to choose an abortion – is in jeopardy as states could pass (and are passing) laws which treat unborn fetuses and embryos more likes persons "in the whole sense."
Number of Pages in PDF File: 15
Keywords: Abortion, Roe v. Wade, Dworkin, PersonhoodAccepted Paper Series
Date posted: February 9, 2010
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