Ah, circumstances have been getting to me and I have tried to commit my views to the entire abortion Roe v Wade issue and the Supreme Court standings upon it and their language over at Captains Quarters Blog. Unfortunately my body required other attentions and was causing problems within that day and I had to discontinue my part of the discussion, even though my mind forced one last, nearly incoherent rambling out.
However, good points were brought up and to understand my position, one must see where I am coming from on this issue to start with. To abbreviate, summarize and, hopefully, not mangle that, let me say the following:
- States set citizenship for its citizens when they are not brought in via Immigration and Naturalization as set by Congress and its powers. The case of this is Citizens giving birth to babies which become new Citizens.
- The Court may not infringe on this power as it is not mentioned as a Federal power, is reserved to the States and the People via Amendment IX and X.
- Amendment IV is not only the due process Amendment, but uses 'persons' for due process as a generalization for those that are Citizens or legally admitted to the US. This is a clumsy phrasing as it may have meant Citizens only, but works and is sufficient when read as a part of the Immigration and Naturalization and the Treaty enforcement provisions of Congress. Strangely enough, by Treaty, Congress could have different statutes and penalties for crimes via Treaty that were *not* applicable to Citizens, so long as there was regularization of understanding and the differences recognized by the Citizenry. Specifically deportation comes to mind for those that are not Citizens, but are in the US legally.
- Amendment IV guarantees due process before deprivation of life, liberty or property. Again, persons here will include Citizens and all in the US that have gotten legal entry.
- Amendment XIV uses 'persons' in a transitive way and it requires a careful reading of that Amendment to understand what it is saying. But the reading of Amendment XIV is a key to the entire abortion debate and unlocks many things. So I will start the bulk of my analysis there.
Passed by Congress June 13, 1866. Ratified July 9, 1868.
Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.
Section 1.All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2.Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3.No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
*Changed by section 1 of the 26th amendment."
And so there it is. Section 1 is recognizing that all individuals born or naturalized into the US are Citizens. So Amendment XIV clearly transitions from the generic 'persons' to Citizens at this point for Section 1. It is the basic equal protections re-iteration of Amendments IV and V. When read with Amendment XIII it is seen that freed slaves are now considered to be Naturalized via that Amendment and that their children born of them are Citizens. But the re-iteration is to enforce the equality of ALL Citizens. That is *extremely* clear and this re-iteration is a supreme re-inforcement of the earlier provisions. Of all things the Constitution guarantees to its Citizens it is the right to equal protection and due process of the law for EVERY CITIZEN. This transitive change is the *only* way to read Section 3 as it is not a redactive Amendment to the Constitution, but a clarification of process due to the New Citizens from Amendment XIII and from Section 1 of this Amendment.
So, while 'persons' in Amendment IV and V will also include those here legally, although Congress may set different though regular laws for same, Amendment XIV as a regularization of Amendment XIII clearly transitions 'person' to Citizen with that intent and meaning throughout the rest of the Amendment.
That puts Amendment XIV and equal protection into perspective and is one of the very few mentions of 'birth'as a condition for Citizenship. Article II, Section 1 for who is and is not included from the founding of the nation is the other. I am sure this has been hashed over elsewhere, but Caesarean Sections while not a traditional 'birth' is still 'birth'. However as C-sections are done to save the life of the mother, at times, or to facilitate birth they may also be done before coming fully to term in the pregnancy. Now I am sure some brain dead lawyer at some place and time, somewhere within the Common Law system has tried to argue that destruction of a non-full term but born child is not murder as only full term gestation and natural birth confer the rights and laws of Citizenship and due process. And has been roundly defeated.
However, the obverse case may not have been tried and that sets one to pause especially because of the viability test put in by the Supreme Court. What is the meaning of the 'viability' language? This must be taken into consideration with the full understanding that premature birth survival via artificial means was improving quickly at the time of the ruling. And by putting in viability language to the right to an abortion in Roe v Wade, the court has done two things:Guaranteed the right to an abortion to a woman for any fetus before it is viable. The trimester system is a recognition of the viability of a fetus to be born prematurely and survive and, thus, become a Citizen.
That due process rights are being violated and civil rights not being extended as the purely technical means of life support and viability now have put a difference in the application of law upon the sole distinction of being inside or outside the womb at a certain age.
The Constitution is set up to ensure regularity in rights and enforcement of law via due process. Amendment XIV clearly and expressly enforces that without a question and it shall not be violated by any Government or law. In fact rights and due process are to be extended in the cases of doubt to ensure the protection of the People and its persons as Citizens. Why did the Supreme Court not say this explicitly?
First, in ruling that a person does not include unborn children is clearly set to differentiate between those born and not. And this attempt to give a trimester 'hack' to allow personhood to be bestowed by traditional birth or emergence is a very dangerous precedent to set. It is clearly saying that the States shall be enjoined from their traditional rights of defining persons and extending rights to the unborn. But then to add viability language clearly clouds the issue as it is viability to what? Be carried to full term, be born and become a citizen. In putting in a distinction and enjoining it, the Court not only puts the Federal system at an overstep, but then totally mishandles how to regulate the entire process. Not only a poorly worded ruling but a poorly thought out one.
Second, it may not have been considered in its full implication. Very simply the court, while ruling on the unenumerated right to an abortion did not consider that a regime of unequal protection was being established. This is an oversight, but understandable given the weight of the ruling itself and the gravity of the enforcement of unenumerated rights. That said, by trying to adjudicate upon what are the traditional Powers of the States, the Supreme Court has taken an overstep by using birth as the sole and only discriminator of Citizenship.
A simple example of two cases can be made upon the viability language to demonstrate this. A crime of attempted murder of a mother and her gestational 7 month fetus has happened. The mother survives and the fetus does not. In one case the criminal is tried with aggravated assault and some additional law on early pregnancy termination, neither of which is a capital crime. In another case the criminal is charged with First Degree murder and aggravated assault. The sole and determining difference is that the viable life in the second case had been born prematurely and was under sustainment via artificial means.
Is *that* equal protection under the law and due process given?
If the answer is *yes*, then in the not so far distant future we may be faced with child not born from woman or any creature, but sustained and developed artificially from beginning to end. That is the *trend* of technology and the understanding of that process, though it is complicated, is becoming more clear by the day. When will rights be granted to that developing fetus? At decanting? It is clearly headed to become a full human being sustained by artificial means and the arbitrary point of emergence to give rights give anyone with a killing urge to only suffer some minor property damage if such a developing fetus is destroyed. The Constitution guarantees, above all, equal protection and due process. Now if you would like to make the argument that a life developed solely through artificial means to become a conscious adult able to reason and develop and procreate is *not* a person, please do so. And let the states give due process regularity to slavery as is allowed in Amendment XIII for such beings that those born through natural processes declare them to be. Because that is where this argument leads, and I doubt very much that the Supreme Court would enjoy this line at all as they would have to rule in favor of it as it fits all the Constitutional requirements and is a natural extension of the Roe v Wade argument to absurdity. Bad luck to be delivered prematurely with all of the health problems therein give you Citizenship? REALLY? And being carried normally and having the life unlawfully ended is *not* murder? The distinction being inside and outside of a mother or host body is the *sole* discriminatory factor? Then WHY use viability language AT ALL? It attempts to enforce an elden, Common Law interpretation upon a very quickly changing landscape and the foundation of it, like New Orleans, is sinking rapidly.
If the answer is *no* then we clearly must understand that technical means of life sustainment and viability are a key to understanding when we can say a developmentally mature fetus should be granted the right to being a person and be extended full civil and due process rights. This means, however, that before viability there is a right to an abortion. The State must step in and give language for determining viability and set a conservative window to ensure that the state of the medical and technical arts do not miss those that are sustainable. Further, the State must then afford full civil rights and due process to gestationally equivalent fetuses WITHOUT respect to their position inside or outside the mother or host. This will ensure full granting of civil rights *and* equal protection under the law through a regularized means. The State may set up such rules and practices necessary to ensure that abortions will *only* be done to non-viable fetuses. Such means and methods could include: sworn affidavits from sexual partners or date of fertilization at a fertility clinic, written and signed documentation from one or more certified specialists in this field, and thorough examination of the aborted fetus with developmental age given from one or more specialists in that field. Yes, you do have the right to an abortion, however you also have the responsibility of keeping track of sexual partners, fertility cycles and early prognosis of pregnancy so that decisions can be made in a proper and timely fashion. Each State may set up exceptions to this as they see fit, so long as they are regular and understood.
This second path takes the Supreme Court to task for making an impossible distinction with profound differences in the application of law, and codifies their very conception of viability into one of Citizenship. The court would then be in a very, very bad spot to try and say any of the following:
1) That birth is the sole discriminator for Citizenship. And if means are found to sustain a fetus that is not born, but extracted without any birth process at all? How would the Court answer this? That physical extraction is birth? That a viable fetus is a person when extracted but not a person when left to develop? That is a very, very bad precedent for equal protection.
2) That viability does not confer personhood? Then why use the language at all? Why restrict ANY abortion up to and including a few days before full term? What is the damn difference? Please show us, oh wise Solons! Tell us why viability does not confer personhood and citizenship. The Supreme Court has had many chances to do *exactly* that and punted. By combining their own language and intent with Citizenship, they cannot easily find a ruling that will give meaning to their language and retain a distinction. And when presented with the differences in criminal prosecution, they will have to explain how viability is different vice being born. Please do square the circle for us and then trisect the angle as we are too stupid to do it ourselves and you give us a distinction that appears to be, on its face, totally against all the Constitution stands for.
3) They could punt, yet again, and say, "No, we didn't mean that and ruled oppositely". FINE. The Court would then overlook the fact that we keep the exact protection set out in Roe v. Wade *and* try to regularize the two directly opposite things this very Court says with viability and personhood. If the Supreme Court really means one thing and gives you a definition that has implicit problems to enforce that ruling, then where do they come off trying to have the States solve something that they, themselves, cannot articulate properly? Is the Supreme Court really saying that due process is not applicable in all cases and that being inside or outside a host at a same viable developmental age is the only discriminator? And that the States using the very verbiage and concepts given to them in the ruling, in attempting to ensure that Citizenship along with rights and due process are properly conferred are absolutely wrong to read developmentally viable into that?
Developmentally viable for.... what?
My answer: to be sustained outside the mother or host.
So viable to be born!
And when you are born in these United States you become.... A CITIZEN!
So developmentally viable to... BECOME A CITIZEN!
Do I make myself perfectly and completely clear on this?
The Court is discriminating based on birth. It IS discrimination to two equally gestated fetuses based on happenstance that one is prematurely born and the other isn't. One gets full rights and protections under the law and killing it is *murder* and can be tried as such. The one being carried to full term is discriminated *against* because it is being carried within its mother!
Forgive me, but that makes NO SENSE WHATSOEVER!
I am, perforce, brain damaged, as in missing gray matter I once had and having mentational difficulties.
Will someone please explain this to me in simple language an average citizen can understand?
Because, from the language given for viability and its intent and the unenumerated rights due to the States, the States may set up viability as a condition for Citizenship as it is THEIR RIGHT TO DO SO. And they will be doing so in a method carrying the full meaning and intent of Roe v. Wade with it! Women can have abortions up to viability, at that point Citizenship is conferred and that new citizen gains all the rights and protections of one be it inside or outside its mother or host.