The Plausibility of Personhood

62 Pages Posted: 20 Apr 2013

Date Written: 2013

Abstract

Is a living human embryo or fetus a “person” within the legal meaning of the term, as used in the Fourteenth Amendment to the U.S. Constitution? This article argues that this question is close, difficult, and exceedingly important. Roe v. Wade, of course, answered the question “no,” yet the Court acknowledged that, if the legal personhood of the fetus could be established, the case for a right to abortion “collapses” – “for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The Court nonetheless gave the question only passing attention in Roe, and subsequent scholarship for the most part has not addressed the question in a serious, balanced, systematic fashion.

This article examines the issue of the constitutional personhood of the human fetus from the perspectives of the full range of usually-accepted methods of constitutional interpretation – text, structure, evidence of historical intention, precedent or practice, and policy – and concludes that the case for personhood is at least plausible and arguably much stronger than the case for the opposite conclusion that was the essential first premise of Roe.

Keywords: personhood, abortion, roe v. wade, constitutional personhood, constitutional law

Suggested Citation

Paulsen, Michael Stokes, The Plausibility of Personhood (2013). 74 Ohio State Law Journal 14 (2012); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 13-14. Available at SSRN: https://ssrn.com/abstract=2254154

Michael Stokes Paulsen (Contact Author)

University of St. Thomas School of Law ( email )

MSL 400, 1000 La Salle Avenue
Minneapolis, MN Minnesota 55403-2005
United States
651-962-4831 (Phone)

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