Some people, especially those in the pro-choice camp, believe that “personhood” and “being a member of the human species” are two different things. But are they? By creating this artificial divide, society can deem certain members of the human family “persons” while denying that title to others of that same family. During arguments in the Roe v. Wade case before the full U.S. Supreme Court in 1972, Texas Attorney General Robert C. Flowers argued for the state against abortion legalization. Flowers was asked by Justice Thurgood Marshall, “Is there any medical testimony of any kind that says that a fetus is a person at the time of inception?”
In response, Flowers submitted dissenting arguments made by Senior Judge Campbell in a 1971 Illinois abortion case, Doe v.s Scott, which Flowers said was “very similar to the case we have before us.”
In that case, Justice Campbell spoke against amending or repealing Illinois’ existing abortion statute. He wrote, “We, as did the Illinois Legislature, have before us the following undisputed facts relating to fetal life.” Campbell eloquently presented facts about the development of the preborn child, quoted in part below (emphasis added):
Seven weeks after conception the fertilized egg develops into a well proportioned small scale baby. It bears all of the familiar external features and all the internal organs of an adult human being. It has muscles; hands with fingers and thumbs; and the legs have recognizable knees, ankles and toes.
The brain is operative…. Brain waves have been noted at 43 days. The heart beats; the stomach produces digestive juices; the liver manufactures blood cells; and the kidneys begin to function by extracting uric acid from the blood.
In the third month it can kick its legs, turn its feet, curl and fan its toes, make a fist, move its thumb, bend its wrist, turn its head, and even open its mouth and swallow and drink the amniotic fluid that surrounds it. Thumb sucking has been noted at this age… with inhaling and exhaling respiratory movements.
In the twelfth week it can move its thumb, in opposition to its fingers. It swallows regularly. It has active reflexes. The facial expressions of a fetus in its third month are already similar to the facial expression of its parents….
In the third month finger nails appear; sexual differentiation is apparent in both internal and external organs….
From the twelfth to the sixteenth week the child grows to eight or ten inches in height and receives oxygen and food from its mother through the placental attachment. In the fifth month it gains two inches in height and ten ounces in weight…. It sleeps and wakes and may be awakened by external vibrations.
In the sixth month the fetus develops a strong muscular grip with its hands; starts to breathe regularly and can maintain a respiratory response for twenty-four hours if born prematurely…. A child has been known to survive between twenty to twenty-five weeks old.
“Indeed, as medical science progresses in the field of detection, the date of potential viability moves continually closer to earlier stages of gestation,” Justice Campbell wrote.
He also quoted from Dr. Arnold Gesell, who wrote in his book, “The Embryology of Behavior”:
Our own repeated observation of a large group of fetal infants (an individual born and living at any time prior to forty weeks gestation) left us with no doubt that psychologically they were individuals. Just as no two looked alike, so no two behaved precisely alike. One was impassive when another was alert. Even among the youngest there were discernible differences in vividness, reactivity and responsiveness. These were genuine individual differences, already prophetic of the diversity which distinguishes the human family.
Today, a corporation is considered a “person” and yet the Supreme Court in Roe wrongly determined that a preborn child was not. This irony is reminiscent of the infamous Dred Scott case which ruled a Black man was not a full person.
The Fourteenth Amendment, known for giving citizenship and equal rights under the law to former slaves and African Americans, should also apply to the preborn, as Live Action News contributor Kristi Burton Brown previously documented.
Fordham law professor Robert M. Byrn addressed this just prior to the Roe case, in an article published in 1970 in the Notre Dame Review:
From its original intent to safeguard Negroes against discrimination by Whites, the fourteenth amendment has evolved into a broad guarantee of equality both to artificial persons and to all natural persons irrespective of citizenship, sex or race. In an era of increased sensitivity to human rights, it would be the ultimate in irony if the corporation which manufactures the instruments used to abort the unborn human child was entitled, as an artificial person, to equal protection of the law, while the unborn child, who is in all respects qualitatively human, is deprived of that protection.
There is no doubt that the child in the womb is a human person deserving of constitutional protection.
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