The Rights of the Unborn: The Constitutional Issues
by Clifford Stevens
Constitutional issues in the United States arise through litigation, through
actual disputes brought into the courts. These issues are also resolved by
litigation, by further action in the courts until the constitutional issues are
clarified. This has been true in the past and it will be true of any national
dispute that arises in the future.
What happens in litigation in constitutional matters is that principles
imbedded in the Constitution, but not explicit in the text of the Constitution,
emerge by the litigation process, and these principles become part of the
constitutional inheritance of the nation and themselves become precedents for
the resolving of future disputes.
The principles that have emerged in the past through litigation are numerous,
but I will mention ten, which have become part of the fabric of
constitutional law in the United States. These principles, it must be
insisted, are implicit in the Constitution itself, and only emerged through
litigation. Litigation is the process by which the Constitution is applied to
new times and circumstances, resolving new issues as they arise.
The ten principles are the following:
1. the power of judicial review (Marbury v. Madison, 1803).
2. the doctrine of exceptionless rights (13th, 14th & 15th Amendments).
3. substantive due process (the 14th Amendment and related cases).
4. the mutuality of rights and duties (overturning of
Plessy v. Ferguson).
5. the rights of workers (overturning of
Lochner v. New York).
6. the rights of women (the 19th Amendment).
7. the rights of children (overturning of
Hammer v. Dagenhart).
8. the doctrine of non-enumerated rights (Roe
9. the right of personal autonomy (overturning of Plessy v. Ferguson).
10. equality under the law (Brown
v. Board of Education, Standing Bear v. Crook & related cases).
These principles emerged from the Constitution because of specific cases
brought before the judiciary. They were not recognized at one time, but arose
through litigation, that is, from actual cases brought before the courts. These
principles and the rights they embody emerged from the Constitution as terms in
the Constitution were applied to new disputes, concrete cases that came before
The latest such dispute, which again challenges the Constitution to reveal
its principles, is the dispute over abortion and the rights of the unborn, a
dispute never raised before in the history of the nation and rights never before
brought before the judiciary, for the simple reason that those rights, before
Roe v. Wade, were protected by state laws. Roe v. Wade has brought
the question of the rights of the unborn into the legal arena, into the
courts and into the purview of the Constitution itself.
The question now before the judiciary is: are there principles, imbedded
in the Constitution itself, which provide a constitutional solution to the
question? What cases, perhaps landmark cases, provide the principles, patterns
and precedents for the question of the unborn? Is the question of abortion, a
question of the civil rights of the woman involved, or is it a question of the
basic constitutional rights of the unborn? How does this case, in all its
concrete circumstances, align itself with the terms of the Constitution and how
is that alignment to be traced?
These are the questions that have to be answered, and unless these questions
are faced, it is not clear what are the constitutional issues involved and whose
rights are at stake in the abortion question.
I am going to give a preliminary survey of three principles, not recognized
before, that apply to the case of the unborn. These principles are based on
terms in the Constitution itself, on principles that have already emerged from
the Constitution and from collateral bodies of law that provide parallels with
the question of the unborn. These three principles could not have emerged from
the Constitution before the abortion question arose, because they had no
application to any actual persons, just as the rights of children had no
foundation in law until the rise of industrial society and the emergence of
child labor as a national issue. In the case of the unborn, we are on the
threshold of a totally new body of law, embryonic law. What we are
witnessing is the birth of a new development in law, as
significant as that pioneered by Abraham Lincoln in his opposition to slavery.
THE FIRST PRINCIPLE was enunciated by Chief Justice John Marshall in a case
decided in 1824: Gibbons v. Ogden. The case the Commerce Clause of
the Constitution, which lays down that commerce in the United States is
regulated by Congress, and not by the several states. This was a direct result
of the failure of the Articles of Confederation, which governed relations
between the states before the Constitution, to regulate commerce for the benefit
of the nation as a whole: each state placing duties and tariffs on the goods of
other states crossing its borders. To assure the free development of commerce
between the states, the power to regulate commerce was placed in the Congress
Gibbons v. Ogden arose out of the invention of the steamboat by Robert
Fulton. Fulton had secured from the State of New York a monopoly on steamboat
navigation on the waters of the state. Under that monopoly, a businessman named
Aaron Ogden was licensed by Robert Fulton to operate ferryboats between New York
and New Jersey. When another businessman, Thomas Gibbons, with a license from
the federal government, began to run steamboats in competition with Ogden, Ogden
sued Gibbons, claiming exclusive rights to navigate between New York and New
Jersey. Gibbons maintained that the New York laws conflicted with the
Constitution and the laws of the United States. After action in the lower
courts, the case was brought before the Supreme Court.
New York claimed that steamboat travel had nothing to do with commerce, and
that commerce had to do with buying and selling alone, therefore New York was
not in violation of the Constitution.
In his decision, Chief Justice Marshall declared that New York had
interpreted the term commerce in the Constitution restrictively;
that commerce had to do, not only with buying and selling, but with the
manufacture and transporting of goods as well. Terms in the Constitution, he
stated, must be interpreted expansively. New York's understanding of
commerce, he ruled, "would restrict a general term, applicable to many objects,
to one of its significations".
This, then, is the principle which emerges from this case: constitutional
terms must be interpreted expansively, not restrictively. What are these
terms? Any term in the Constitution: in this case, the terms commerce,
regulate, provide, but that can be applied to other terms as well, person,
for instance. In Roe v. Wade, Justice Blackmun laid down that the term
person in the Constitution does not apply to the unborn. That is a
restrictive application of the term person and restricts "a general
term to only some of its significations". This is an invalid and
unconstitutional application of the term.
THE SECOND PRINCIPLE emerges from the doctrine of non- enumerated rights,
included in the 9th Amendment of the Constitution and recognized by the Roe
v. Wade decision. In the case of Roe v. Wade, the right to privacy
was laid down as a basic non-enumerated right embodied in the 9th Amendment, and
Justice Douglas in his concurring opinion mentioned several others. The
question is now, in the light of Roe v. Wade itself and the case of the
unborn, is there another, more comprehensive right, which includes, as parts
in a whole, not only the right to privacy, but every other right protected
by the Constitution? Is there a right, so comprehensive in its scope,
that it resolves the question of whose rights are threatened in the case of
abortion, in the light of which, the question of the rights of the unborn is
And that is where the history of constitutional law itself enters into the
picture, from its origins in Spanish America in the 16th century to the passing
of the Constitution of the United States and the Charter of Human
Rights of the United Nations. For there is a basic right, a basic human
right, applicable to every human being, which is the root and foundation of all
other rights, the violation of which brought forth the very concept of
constitutional law and laid down the principles upon which the Constitution
of the United States is based. That right is the right of dominion,
the non-enumerated right which contains all other rights, and without which none
of them is secure and none of them embraces the human being in his or her
The right of dominion is the basis of all constitutional government
and declares: as a human being, I have dominion over my total person, as well as
the free exercise of that dominion, a right given to me, not by any law or
government, but by the very fact that I am a human being. The primary purpose of
all human law is to safeguard this right, to secure it when denied or ignored
and to safeguard it when threatened. The law does not create this right, and so
it has no power to interfere with it, to restrict it or to take it away, except
for the commission of some crime which is a danger to the exercise of this right
The right of dominion is my right over my total person, not only my
right to life, but my right to. my hand and my foot, to every part and
portion of my being, and of those things I need to live and enjoy normal
human existence: my breath, my land, my home, my possessions, and all of those
things that are an extension of my person in the exercise of this right of
When we speak of freedom, we mean freedom to the right of dominion
over my person, in my beginnings as a human being and in those stages of human
growth by which I emerge into the human community. I and only I have dominion
over my person and the right of dominion is the basis of all government,
including the government of the United States. The Law of Dominion
states: every human being, by the very fact that he or she is a human being, has
total and exclusive dominion over the totality of his or her person. The purpose
of law is to recognize, further and safeguard this right and to give the
protection of the law when this right is denied, ignored or threatened.
This, then, is the foundational right imbedded in the Constitution of the
United States, the basic non-enumerated right which is the basis of all
other rights, enumerated and non-enumerated. The doctrine of non-enumerated
rights has been made part of American Constitutional Law and it is part of the
judicial process and of litigation in the courts to identify these rights and to
make them part of the constitutional inheritance of the United States. That, in
itself, is an ongoing process and reached a certain judicial watershed in Roe
But now a THIRD PRINCIPLE emerges, never recognized before, because
before the question of the unborn entered the legal arena, the principle had no
application. In the case of the unborn, there is a double dominion, a divided
dominion, unique in human life and unique in jurisprudence, because of the
very nature of embryonic life. There is nothing in law that parallels this case
and there is no principle in constitutional law to cover it. And that is where
constitutional law looks to collateral bodies of law to find patterns, or
parallels or precedents relating to divided dominion.
There is such a parallel and there is such a precedent and. it is found
in a section of law called the Law of Bailments, a section of law taken
from English Common Law and commented upon with great clarity by Joseph Story,
the constitutional genius of early American law and himself an Associate Justice
of the Supreme Court in the days of John Marshall.
"Bailments" is defined as the divided dominion of personal property which
contemplates custody in one part and ownership in another.
Now this description exactly parallels the relationship of mother and
child in the process of gestation and it exactly describes the legal and
constitutional issues involved. As in the Law of Bailments, when a trust is set
up with a bank, the bank has a trust-dominion over the property or money
placed in trust, the one setting up the trust has absolute ownership,
that relationship carefully defined by law and carefully monitored by law.
In the case of the unborn: the mother has a trust-dominion over the
child, just as she has over children already born; the unborn child has
absolute dominion, and there is already a principle of Common Law governing
this relationship: qui in utero est pro jam nato habetur, quoties de ejus
commodo quaeritur: one who is in the womb is held as already born,
whenever a question arises for his benefit. (I Bl. 130).
From this and from the empirical facts of over 200 embryonic sciences, a new
legal definition of unborn life can be demonstrated and defended, as the basis
for deciding future cases:
A human subject in a state of somatic organizational and developmental
repose, with an integrating and organizational principle distinct from and
separate from. the body of the mother. We can show that a body of empirical
evidence shows that the integrating principle is a human person in the
unfolding of its innate human powers, gradually experiencing, expressing and
revealing the blossoming of its distinctly human powers.
From this legal reasoning and from this body of empirical evidence, the
legal mind can then defend in the legal arena that there are three juridic
moments of the human person, each one with its own laws and its own legal
safeguards, based on the human condition of the human subject involved:
1) the autonomous moment of adulthood:
2) the pedagogical moment of childhood: and
3) the embryonic moment of the unborn.
That is how the ten principles of constitutional law that I listed in the
beginning were identified and made part of our constitutional inheritance. But
it takes a legal mind, immersed in constitutional law, in the text of the
Constitution, and in every major case adjudicated in the courts, to align this
new frontier of law with the accepted inheritance of law. Such was Daniel
Webster, who argued Gibbons v. Ogden and other classic cases; such
was Abraham Lincoln, who saw clearly the constitutional issues in the slavery
question; such was John Marshal Harlan, whose dissent in Plessy v. Ferguson
laid down the principle that brought about the reversal of that decision; such
was Oliver Wendell Holmes, Jr., whose dissents in Lochner v. New York
and Hammer v. Dagenhart brought about their reversals, and such was Louis
Brandeis, whose "Brandeis Brief" in
Muller V. Oregon pioneered a new era of constitutional law and of social
legislation, breaking the back of "court-protected capitalism" which had
dominated Supreme Court decisions up to that time.
We are entering a new era of constitutional law: the emergence of
embryonic law as a part of our constitutional inheritance, and what is
demanded in this legal and constitutional effort is something resembling legal
genius, to draw from the Constitution itself and from our constitutional
history, the principles that will make the rights of the unborn an integral part
of our constitutional inheritance.
1) cf. "Daniel Webster: The Man and His Time" by Robert Remini, W.W.
Norton Co., N.Y., 1997, pgs. 201-208. U.S. Supreme Court 1824, 22 U.S. (9
..h-a,.) 1, 6 L. Ed. 23.
2) cf. "Address at Cooper Institute, New York City", Feb. 27, 1860, included
in "Abraham Lincoln: Speeches & Writings 1859-1865", The Library of America,
1989, pgs. 111-130.
3) cf. "Simple Justice" by Richard Kluger, Random House, N.Y., 1975, pgs.
81-83; also "Constitutional Interpretation" by Harold W. Chase & Craig R. Ducat,
West Publishing Co., St. Paul, MN, 1979, 2nd Edition, pgs. 7437744. Supreme
Court of the United States, 1896, 163 U.S. 537; 16 S C- 1138; 41 L. E-5.
4) Supreme Court of the United States, 1918; 247 U.S. 251; 38 S. Ct. 529; 62
L. Ed. 1101. Chase & Ducat, op. cit., pgs 480-482.
5) Supreme Court of the United States, 1908, 208 U.S. 412; 28 S. Ct. 324
"Louis D. Brandeis: Justice for the People" by Philippa Strum, Schocken
Books, N.Y. 1984, pgs. 114-131; "Brandeis: A Free Man's Life" by Alpheus Thomas
Mason, Viking Press, N.Y., 1946, pgs. 248-254; "Of Laws and Limitations" by
Stephen W. Baskerville, Fairleigh University Press, Teaneck, N.J., 1994, pgs.
145-148. Also, The Brandeis Brief", Supreme Court of the United States, October
term, 1907, No. 107.
New Perspectives on the Defense of the
Unborn as a Constitutional Issue