A Due-Process Compliant Pathway to Restore Constitutional Fetal Personhood and Reverse Roe v. Wade

“The power of the modern state {including one of its arms, such as its highest court} makes it possible for it to turn lies into truth by destroying the facts which existed before, and by making new realities to form what until then had been ideological fiction.” — Hannah Arendt, The Origins of Totalitarianism (1951)

In Roe v. Wade, the Court destroyed the historical fact that procured abortion was always criminally prosecuted by English common law, and then created a false historical reality that procured abortion was recognized there (in common law) as a woman’s liberty. The Roe Court then went on to create the following as facts from a Roe trial court record which was utterly void of any of these facts (410 U. S. 113,152):

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.

The Roe Court’s “fetal-scapegoating,” or parading of “potential horribles,” facing a woman denied access to procured abortion violated a fundamental rule of appellate review as articulated in Hammond v. Schappi (275 U.S. 171-173, 1927): “Before any of the questions suggested, which are of novel and of far-reaching importance, are passed on by this Court, the facts essential to their decisions should be definitely found by the lower courts upon adequate evidence.”

The central principle of rule “by the rule of law” is “ascertainable legal standards.” The central question of modern constitutional law is the legal standard for determining whether an asserted or claimed right qualifies as a “fundamental right.” The Roe opinion held that access to abortion is a woman’s fundamental right. But, and contrary to a near universal belief, it did not do so by holding that abortion access falls within the constitutional protections of the right to privacy. It holds expressly the exact opposite: in order for abortion access to qualify for protection under the constitutional right to privacy, it must firstly and independently qualify as a fundamental right (410 U. S. 113, 152: See Philip Rafferty, “Roe v. Wade: A Scandal Upon the Court,” 7 RJLR No.7.1 (2005) at par. 42-71). That holding is, of course, just so much nonsense since, almost by definition, a fundamental right can simply generate all the privacy protections which it may need. There is simply no person under God’s good sun who can demonstrate what legal standard by the Court in Roe v. Wade —if any, as I maintain that no such standard, period, was even employed—in order to conclude that procured abortion qualifies as a fundamental right. (The same is equally true relative to holding that the state’s admittedly legitimate and important interest in safeguarding conceived, unborn human life from being aborted is “non-compelling” until fetal viability.) Hence, one may reasonably maintain that Roe v.Wade has initiated the ruination of constitutional law rejecting rule “by the rule of law.”

This article seeks to demonstrate, from a legal/historical standpoint—which is supported by primary legal authority—that contrary to Roe v. Wade, as well as in the opinion written by Roe’s most formidable enemy, Justice Scalia, that the unborn human fetus qualifies in the 5th (1791) and 14th (1868) Amendments’ due process clause definitions of “person,” thus showing a due-process compliant pathway to restore constitutional fetal personhood and reverse Roe v. Wade.

Justice Scalia maintains that 5th and 14th Amendments due process clauses protect persons, but are limited to “walking around ones—you don’t count pregnant women twice” {to which one can reply that you can easily count the pregnant mom as one, and her unborn child, or fetus, as another one}, and there is nothing in the legislative histories of those amendments which implies that their framers intended there to include unborn ones, and those in the process of becoming so. (Google: “Justice Scalia’s interview with Leslie Stahl on 60 Minutes,” April 27, 2008.) But all that can be said can also said of newly born ones feeding at the breasts of their mothers. Yet, no reasonable person could argue credibly that these newly born ones also do not qualify as 5th and 14th Amendment due process clause protected persons. And I assure the reader that if Justice Scalia were to employ the question of whether the unborn child qualifies as a due process clause person, the historical-legal approach to constitutional interpretation which he employed in the D. C. v. Heller (2008) 2nd Amendment case on individual gun rights (554 U. S. 570), then he would be compelled, fifteen or so times over, to hold that the unborn child qualifies also. I will in this essay explode Justice Scalia’s idea on fetal non-personhood along with his idea in Heller (id at 576, and quoting U. S. v. Sprague, 286 U. S. 716, 731 (1931): The words and phrases of the Constitution “were used in their normal and ordinary meaning.” It simply strains all credulity to maintain that our Founding Fathers thought of the right of an individual to possess a firearm worthy of constitutional protection, but not the unborn child/person living in the womb of his mother.

The United States Supreme Court, in Roe v. Wade, stated expressly and explicitly that its core holding—that a pregnant woman enjoys a “fundamental” constitutional right to have her non-viable fetus aborted—is in accord with, and is, in no small part, derived from the English common law. (See Roe v. Wade (1973), 410 U.S. 113, 140-141 & 165).Well, the exact opposite is true, and this truth is proved by a slew of unassailable “primary” English common law legal authorities. One of which is this one: as related by the English trial court judge to the jury, some twenty years before the incorporation of the 5th Amendment’s (1791) due process clause into the 14th Amendment (1868), in the case of Queen v. West (1848), Cox’s C.C. 500, 503; 2 Car & K 784 785; 175 Eng. Rpt. 329.

The prisoner is charged with murder: and the means stated are that the prisoner caused the premature delivery of the witness Henson, by using some instrument for the purpose of procuring abortion; and that the child so prematurely born was, in consequence of its premature birth, so weak that it died. This, no doubt, is an unusual mode of committing murder…; but I am of the opinion, and I direct you in point of {the common} law, that if a person intending to procure abortion does an act which causes a child to be born so much earlier than the natural time, that it is born in a such state that it is less capable of living {meaning that the child “became nearer to death and farther from life”} and afterward dies in consequence of its exposure to the external world {i.e., because it was aborted alive in a non-viable state}, the person, who by her misconduct so brings the child into the world, and puts it, thereby, in a situation in which it cannot live, is guilty of murder.

This essay seeks to translate into layman’s language “how” the Roe v. Wade Court’s express reasoning in deciding the issue of fetal personhood was done in a manner so as to keep “covert” precisely how, in fact, this issue was really decided there. It is important to understand this because of this constitutionally true statement put forth by retired Supreme Court Justice Paul Stevens in his concurring opinion in Thornburg v. ACOG (1986), 476 US 747 779 (& its fn.8): “The permissibility of terminating the life of the fetus could scarcely be left to the will of the state {and the federal} legislatures {if} a fetus is a person within the meaning of the {5th and 14th Amendments}.” See Palmore v Sidoti (1984), 466 U. S. 429, 433: By virtue of the doctrine of parens patriae, the State … has a duty of the highest order to protect…children.”

Here, by way of analogy, is how the fetal personhood issue was really decided in Roe v. Wade. It is as if a public institution or agency, such as a police department, were to say this to a pregnant woman: “We are providing you with full security and protection, but none for the child which you are carrying inside you; and this is being done out of respect for your English common law-derived, fundamental constitutional right to obliterate that child through procured abortion.” This mentality was superimposed, or inflicted, upon the mentality of our Founding Fathers by the Roe Court.

Evidence in favor of the truth, or aptness of the foregoing analogical illustration, can be shown by asking if anyone can justify constitutionally a “yes” vote in favor of upholding the constitutionality of the statute set forth in the following hypothetical constitutional question on fetal personhood as put forth in Philip A. Rafferty, Roe v. Wade: Unraveling the Fabric of America (2012) at pp. 50-54 (available for free viewing online at www.parafferty.com, and herein after cited as Unraveling).

Suppose that a federally condemned woman was impregnated by her prison guard eight (8) weeks to the day before her scheduled date of execution, and that the dirty deed was uncovered through a DNA analysis of semen contained in a used prophylactic found in her bedding on the eve of her scheduled date of execution. Suppose further that the condemned woman does not request a stay of execution until the birth of her child, but that an obstetric ultrasound, or a fetal dating scan confirms the existence in her womb of a live, walnut-size, newly formed fetus.  Finally, suppose that the “sole” issue before the Court is whether a federal statute, which bars, without exception (other than the exception of the person’s inability to appreciate that his or her death is imminent) all reprieves, violates the 5th Amendment’s due process clause (enacted in 1791), in that the condemned woman’s live fetus qualifies as a 5th Amendment, due process clause person. Who would argue or vote to uphold the statute barring the granting of a fetus’ petition for a stay of his mother’s execution so that he may have a chance to live his or her life just as you and yours do?

Would, for example, the ACLU argue or vote to uphold the statute? I think not.

Generally speaking, and with certain exceptions not relevant to this discussion, the English common law was the dominant law in, and throughout, Colonial America, and the USA and its territories, from the late 18th century to well into the 19th century. The USSC, in Smith v. Alabama (1888), 465, 478 observed: The “interpretation of the Constitution… is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in light of its history.” There is a widespread, popular misconception, fueled largely by agenda-oriented and ideologically driven pro-Roe law professors, legal historians, and organizations such as the ACLU, Planned Parenthood, and Catholics for Choice, et al, (and all of whom should know better) that procured abortion was recognized as a right by English common law. Hardly! There exists unassailable “primary” legal authority establishing each of the following observations on the prosecution of procured abortion by English common law: (1) If a person unintentionally or accidentally killed a woman in the course of performing an abortion on her, then her abortionist was capitally hung (See Unraveling, Appendix 3, pp. 89-101); (2) If a woman killed herself in the course of attempting to self-abort, then she was adjudged a deceased capital felon, and received, among other punishments, a non-Christian burial (See Unraveling at pp.53 & 159-163 – Appendix 6); and, (3) Procured abortion was prosecuted criminally, irrespective of whether the woman was even pregnant in fact, or deemed pregnant with a live or “quick” child, or had “quickened,” or had experienced “quickening” (See Unraveling at Appendix 1 (pp.70-82), Appendix 6 (pp.159-163), and pp. 199-203-n.13). In the foregoing Appendix 1 case, a 1732 English, “pre-quick with child” abortion prosecution, the trial judge, in the course of instructing the jury on the procured abortion evidence presented by the prosecutor, told the jury that he had “never met with a case so barbarous and unnatural.” The defendant nearly died on the pillory from being pelted with a barrage of flying fruits and vegetables.

The reader should be careful not to read into this essay ideas which are not at all being put forth, such as a push for states’ rights. What is being offered to the targeted states, among the several states, is an opportunity to transcend federalism, and bring into existence a legal play for the constitutional recognition of fetal personhood at the federal level. Only as a secondary purpose is it being offered as a public undressing of certain past and current justices of the USSC for their overreaching in establishing or keeping secured a new and odd kind of a constitutional right: One which can be exercised only by destroying the constitutional rights of others, i.e., unborn ones, including, of course, the conceived unborn’s Declaration of Independence (1776) which implicitly-recognized their “unalienable” right to live out their lives. These justices have appointed themselves as our Nation’s roving problem-solvers in the sky. They need to be brought back down from their skies on high.

This short essay presents a doable legal play, which can be repeated indefinitely until the USSC grants a hearing on the fetal personhood issue, but also argues that Roe v. Wade truly is a far worse decision than is Dred Scott, which is widely recognized as the worst of all USSC decisions. This is because, although the Dred Scott decision produced a result which can be described only as a morally reprehensible result, the Scott decision was, nevertheless, a constitutionally sound one, and its core holding, that slaves lack constitutionally recognized citizenship status, and so they cannot sue in federal court, was arrived at in accordance with constitutionally sound judicial procedure and interpretation. Our Founding Fathers made it more than abundantly clear that the Constitution was not being enacted in any sense whatsoever as a forward step towards doing away with slavery. The Founders wanted unity and independence, and felt certain that if they prohibited slavery, then there could be no real union of, and strength in, the several states.

Roe v. Wade, on the other hand, employed a scandalous method of judicial procedure and interpretation, or rather, a lack thereof, and one packed with judicial prejudice, in order to arrive at an equally disastrous and morally reprehensible result: Incredibly, the Roe justices removed from the protections of the Constitution, a class of persons, conceived, unborn human ones. And, they unwittingly began this removal process before even beginning their ruling on the issue of whether the human fetus qualifies as a constitutionally recognized person. Our Founding Fathers almost certainly, unanimously understood this class of persons, conceived, unborn human ones, to be fully intact ones, i.e., as constituting beings who lack nothing which is generally recognized or considered as essential to being deemed as human persons (See Unraveling, at pp. 51-52.). Our Founding Fathers looked at access to the insidious practice of procured abortion just as we look back on the insidious practice of slavery. The fundamental difference here, between us and our Founding Fathers, is that they at least acknowledged openly that slavery was utterly morally reprehensible. We, on the other hand, as a people, seem to lack the moral courage to at least acknowledge the same relative to the insidious practice of procured abortion. And, this seems to be so, in no small part, because the powers that be, such as our elitist and intellectual betters, and self-appointed caretakers, such as the ACLU, know full well that if it is ever admitted that abortion is morally reprehensible, then, Roe v. Wade, and all of its progeny, will fall.

There is a doable legal play to force the USSC to reconsider the constitutional validity of Roe v. Wade, and especially its express holding that the fetus does not qualify as a 5th (14th) Amendment due process clause person. The first thing to do, for those states desirous of outlawing procured abortion, and in favor of a National Fetal Personhood Amendment, is to enact, simultaneously, or as nearly so as is possible, virtually identical criminal statutes explicitly outlawing abortion, and with the express statutory purpose of each one being to comply with the 5th (14th) Amendment due process clause truth that the human fetus qualifies there as a person. This would be in direct and open defiance of Roe v. Wade; but it can be demonstrated that this is not unconstitutional, because there exists a specific provision in the Declaration of Independence that authorizes such state or federal action, as the case may be. The Constitution, itself, implicitly recognizes the Declaration of Independence as an authority greater than itself.

Once these statutes are attacked in federal court, the defendant states should each move to have all these attacks combined or consolidated before a single federal trial court judge. If there is a sufficient number of such united states, among the several states, then that becomes a voice too big for the Court to credibly refuse to hear. Maybe a person such as Senator, and potential U.S. President, Rand Paul could be enlisted to help establish a sufficient number of such states.

The state federal trial court briefs must, among other items, contain these legal points: (1) Roe v. Wade, itself, holds explicitly and expressly that if the human fetus qualifies as a due process-clause person, then, not only does Roe fall in its entirety, but the states (and this is an implicit Roe holding) would be compelled constitutionally to outlaw procured abortion; (2) Roe’s fetal non-person holding is “void ab initio” along the lines of the Court’s holding in Burgett v. Texas (1967), 389 U.S. 101, 113-116, that the denial of a due process guaranteed right to counsel in an alleged prior conviction makes said prior conviction “void ab initio” and, so, subject to being attacked “collaterally.” Jane Roe’s fetus was not given a due process-mandated opportunity, let alone a “meaningful” one, to be heard on the question of its personhood status and right to live. This means that constitutionally speaking, the Roe-decided question on fetal personhood becomes, once again, an open, undecided, and “unsettled” one, and which the several states are, therefore, constitutionally permitted, or free to act, on a “yes” answer they may give to this now newly opened, vital constitutional question; (3) the fetus qualifies as a 5th and, therefore, also as a 14th Amendment due process clause person: (See Unraveling at pp. 49-54, including all the “primary” and secondary authorities cited in those pages.)

What gave rise to this legal play thinking was a realization that, contrary to a near universal opposite belief, the Supreme Court, in the Dred Scott case (1857) held “implicitly,” that the negro slave, Dred Scott, constitutes a 5th Amendment due process clause “person”; for otherwise Scott would not have been afforded—which he was so afforded—the due process guaranteed right, which is given only to constitutionally recognized “persons,” to a “meaningful opportunity” to argue in federal court that he was a citizen and, therefore, could indeed sue in federal court. An “implicit” holding is no less binding than is an explicit one. And if here, a person should argue that if that is true, then it must surely follow that Scott was denied his liberty without due process of law, then the response would be this: Logic dictates that a person cannot be denied what he or she had no “constitutionally recognized” right to possess in the first place; and no more than could it be “then” said that an adult white woman was denied her 5th Amendment due process liberty right to vote in a national election. Neither freedom from slavery, nor women’s suffrage, were “originally” constitutionally guaranteed. It must be understood that “law has its own integrity.”

Unlike Scott, the slave, who was at least given the due process mandated opportunity to argue that he was a citizen and entitled to his freedom, Jane Roe’s fetus was never afforded an opportunity to argue for his very own life. Throughout the entire Roe v. Wade legal proceedings, i.e., from its beginning in a federal trial court, to its final conclusion before the USSC, no attorney, and no guardian ad litem was ever appointed to argue on behalf of Jane Roe’s incompetent, defenseless, helpless fetus. Thus, one can argue credibly that Roe’s fetal non-person holding did not comply with the dictates of procedural due process. And without such a due-process backing, Roe’s fetal non-person holding can carry no more weight than that of the tail feathers of a humming bird. As the Court, itself, reiterated in Wisconsin v. Constantineau (1971), 400 U.S., 436: It is the constitutional guarantee of procedural due process that secures rule, by the rule of law, and not by judicial fiat. And such process is always “personal” to the person entitled to it. There is no such thing, such as a friend of the court brief, as a valid or legitimate constitutionally recognized substitute for being afforded due process of law.

Finally, if it be said that the legal play proposed here is an outright, frontal attack on the Constitution, the response should be that our Declaration of Independence grants to the states, or to the People, the authority to make just such an attack: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain Unalienable Rights, that among these are Life…” {and which, and according to Blackstone—the foremost “primary” legal authority on the English common law in late 18th century America, see Unraveling at pp. 51-52—this life begins, in contemplation of law, as soon as the (human embryo) begins to stir, i.e., develops into a recognizable human shape} “… That to secure these rights, Governments are instituted among men … that whenever any Government becomes destructive of these ends, it is the Right of the people to alter or to abolish it.”

Blackstone has, from his grave, deemed our Constitution, which includes the Court’s holdings in Roe and in Casey, as tyrannical to the highest degree (1 Blackstone Commentaries 129 (1765):

This natural life {i.e., the life of a human being or person, which “begins in contemplation of law as soon as an unborn infant is able to stir” or is organized into a recognizable human form—at which stage it receives its human or rational soul: See Unraveling at pp. 51-52, (including the endnote 13 on pp.199-203), and 234-236} being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual {particularly by its very own mother: See Unraveling at p.53 at text accompanying note 16} … merely upon their own authority … Whenever the Constitution of a state vests in any man, or body of men, a power of destroying at pleasure, without the direction of laws, the lives or members of the subject, such Constitution is in the highest degree tyrannical.

It is constitutionally undisputed that the USSC has no authority whatsoever to interpret or write-out of the Constitution any person, or class of persons, such as illegal aliens, derelicts, slackers, addicts, white trash, impoverished ones, criminals, terrorists, gang-bangers, people of color, physically deformed ones, mentally deficient ones, communists, atheists, homosexual ones, transgender ones, radical feminists, PETA members, vegans, corporate ones, or newly born ones. For a person to argue otherwise is to run the risk of writing himself right out of the Constitution.

Retired Supreme Court Justice Paul Stevens, widely recognized as one of the most liberal justices ever to sit on the USSC, in his “Address: Construing the Constitution,” (18 UC Davis L.R. 1, 20 (1985)), observed: Supreme Court justices, in interpreting the text of the Constitution“must, of course, try to read … {the} words {put forth there} in the context of beliefs that were widely held in the 18th century.” One such then widely held belief was that a newly intact human person comes into its existence as such just as soon as it achieves “fetal formation” in the womb of its mother. (Contrary to a near universal belief, “quickening” played no role in the prosecution of procured abortion or unborn child-killing at the “pre”-19th century English common law.) Chas. Leslie, in his Treatise of the Word Person 7” (1710), observed that a fetus or man becomes “a Person by the Union of his Soul and {formed} body… is the acceptance of a person among men in all common sense and as generally understood.” This same widely held and accepted belief was noted also by Walter Charleton, a fellow of the Royal College of Physicians, in his Enquiries Into Human Nature 378 (1699): “That the life of man doth both originally spring, and perpetually depend from the intimate conjunction and union of his reasonable soul with his body, is one of those few assertions in which all Divines {theologians} and natural philosophers {scientists} unanimously agree.” And so said Benjamin Rush (1745-1813), foremost recognized 18th century American physician, Founding Father, and signer of the Declaration of Independence (1776), in his Medical Inquiries (1789) 42: “No sooner is the female ovum thus set in motion, and the fetus formed, then its capacity of life is supported.” Samuel Johnson, in his A Dictionary of the English Language (1755) (vol. 2, sub. tit.: quick) defined “quick” (as in “quick with child”) as “the child in the womb after it is perfectly formed.” George Mason, in his A Supplement to Johnson’s English Dictionary (1801) (sub. tit.: quick) defined “quick” (as in “with quick child”) as “pregnant with a live child.” In a 1990 letter (on file with the author), J.A. Simpson, then co-editor of the Oxford English Dictionary (OED) corrected (and which correction appears in the 2007 (SOED) in that dictionary’s “quick with child” entry (and I am grateful to Mr. Simpson for his permission to publish this letter):

From the discussion you present, it would seem reasonable to infer that the {“quickening”} entry in the Oxford English Dictionary for “quick with child,” while adequately representing the meaning that had come to be current in the 19th century, does not reflect the earlier history of the phrase, and its changing relationship with the term “quickening.” A revised entry might read something like:

Constr. With.

  1. a. Quick with child, orig., pregnant with a live foetus {sic: “child”: a pregnant woman, on experiencing “quickening,” announced: “I’m pregnant with a live child,” and not “I’m pregnant with a live fetus.”}; later {i.e., sometime during the course of the 19th century, at the stage of pregnancy at which the motion of the foetus is felt (infl. By QUICKENING vbl. sb.). Now rare or Obs.

The “only” way for a person to conclude that Blackstone understood the criterion of “when” a woman becomes “quick with child” to be “quickening” (i.e., at the mother’s initial perception of the stirrings or movements of her fetus), and not “at the completion of the process of fetal formation,” is if this person reads backwards (beginning in the 19th century), the history of the use of the term “quick with child.”

The onset of fetal stirring (not to be confused with “quickening” which refers to the pregnant woman’s “initial perception” of this fetal stirring) was then understood to coincide with fetal formation. The following is a great example of this understanding. It is taken from Bartholomaeus Anglicus’ De Proprietatibus (written between 1230 and 1250), which was during the later middle ages, and quite possibly into the 17th century, the most read book after the Bible:

This child is bed forth … in four degrees. The first is … The last {or 4th} degree is when all the external members are completely shaped. And when the body is thus made and shaped with members and limbs, and disposed to receive the soul, then it receives soul and life, and begins to move itself and sprawl with its feet and hands … In the degree of milk it remains seven (7) days; in the degree of blood it remains nine (9) days; in the degree of a lump of blood or unformed flesh it remains twelve (12) days; and in the fourth degree, when all its members are fully formed, it remains eighteen (18) days … So, from the day of conception to the day of complete disposition or formation and first life of the child is forty-six (46) days. (Taken from On the Properties of Things: John Treviso’s Translation of “Bartholomaeus Anglicus De Proprietatibus Rerum”: A Critical Text. pp. 296-297 (Oxford 1975). (Treviso’s translation was completed at Berkeley, Gloucestershire, in February, 1398. Id. at xi.)

There is, then, one reason, and “only” one reason why, in the context of in-womb child killing prosecution by the English common law, that sometime during the 19th century “quickening” came to replace “fetal formation” as the common law criterion of when a pregnant woman can be said to be “quick with child”: a subtle mistake in legal interpretation. In several abortion cases prosecuted during the period 1808-1832, English judges mistook “quickening” for the definition of the term “quick with child” (which in its primary sense, as does the term “with quick child,” means simply “to be pregnant with a live child”). They did this because in England before, during, and after the reign of common law offenses, it was a common expression among pregnant women to refer to themselves as being “with quick child” or “quick with child” (i.e., as being pregnant with a live child) once they had experienced quickening. These judges mistook a vulgar opinion on the subject of “when” a pregnant woman becomes quick with child for the definition of that term. They mistook a “when,” and a wrong one at that, for the definition of the “what.” (See, e. g., R. v. Phillips (1811), reproduced in Unraveling, supra in Appendix 5, at pp. 155-158.) The Philips trial court judge erroneously instructed the jury that the statutory phrase “then being quick with child” refers to the pregnant woman’s “quickening.” That is the virtual equivalent of a California, USA, trial court judge instructing a jury that a defendant is guilty of DUI of alcohol (“no longer capable of driving a vehicle in a manner characteristic of a sober person under similar road conditions”) if he was driving while being drunk, i.e., while being out in public, was incapacitated to the extent of being unable to take proper care of himself. (And for what it may be worth here—a whole lot—to every informed legal person who does not suffer from an addiction, to the ideology of procured abortion rights, the common law, so-called “born alive rule”—no fetal murder unless unborn child is born alive, before dying from the abortifacient act—also was derived from nothing more than an error in case interpretation (from a very defectively reported case) by none other than the greatest of all English common law justices, Sir Edward Coke, 1652-1634. (See Unraveling at pp. 105-108 & 125-154.)The then-existing opinion—that a human being begins its existence at the same time as at the completion of the process of fetal formation—while being a virtually unanimous opinion, was not so entirely. For example, Charles Morton, a one-time president of Harvard College, in his Compendium Physicae (1680) (the science textbook used by Harvard college students from 1687 to 1728), stated (p. 146):

Here, a question may be moved: at what time the soul is infused? It has been formerly thought not to be till the complete organization of the body… And here the law of England {i.e., 21 Jac. (Jas) 1, c.27 (1623/24, and reproduced online at www.parafferty.com: Download Roe v. Wade: The Birth of a Constitutional Right, and go to pp. 475-482} … condemns not the whore who destroys her {bastard} child for murder unless it appears that the child was perfectly formed … Upon this supposal: that till then there is no union … of soul and body; but indeed it seems more agreeable to reason that the soul is infused {at} … conception.

Another widely held belief was the English common law rule that the human fetus, beginning at its initial conception in the womb of his mother, “is generally considered to be in being {i.e., is considered to be in full and complete intact existence as a human person} in all cases where it will be for the benefit of such child to be so considered.” (Hall v. Hancock (1834), 32 Mass. 255, 257-258, and quoting Blackstone: widely recognized as the foremost legal authority on the English common law in late 18th century America).

The problem here, then, is not so much that the Roe Court committed an egregious error and gross injustice in concluding that the human fetus does not qualify as a due-process clause person. The real problem is that the consequences of this erroneous conclusion seem too enormous, the destruction of some fifty-five plus million constitutional persons, so as to admit the error. Man’s capacity to deceive himself in the name of humanity does truly transcend humanity. And no one has ever put this better than W. H. Auden: “Everything turns away—Quite leisurely from the disaster.”

In deciding whether procured abortion fits into the “fundamental rights equation,” the Roe v. Wade justices, disregarding even a semblance of due-process analysis, arbitrarily excised the fetus from consideration. To maintain implicitly, as did the Roe justices, that a concern for whether abortion kills an intact human being can be arbitrarily excised from the “fundamental constitutional rights equation” relative to procured abortion, is the exact equivalent of arbitrarily excising a concern for human safety from the building equation for a new super highway.

The Roe Court’s express holding that access to medically procured abortion qualifies as a pregnant woman’s “fundamental” right or liberty, constitutes an implied holding (and one which is easily exploded to beyond “kingdom come”) that the human fetus, or unborn child, does not qualify as a due process clause person. (See Philip A. Rafferty, “On Roe v. Wade’s Two Independent Holdings (one Explicit, and one Other Implicit) that the Human Fetus Does Not Qualify as A Person, Constitutionally Speaking” in www.parafferty.com.)

The nature of an act cannot be changed simply by relabeling it. So, if abortion is recognized as homicide, as is shown consistently by “primary” English common law legal authorities over the past 700 years, then it remains so when relabeled as a fundamental right. A reasonable person wants to know well that to which he gives his support.

Great moral outrage exists over allegations that baby night-herons were mangled to death in a botched wood-chipping incident. (LA Times, May 14, 2014, p.AA4). Such outrage also exists over an alleged willful killing of the lowly (rodent) opossum (Times, supra, March 22, 2008, p. B4). But unfortunately, for many, there exists no such outrage over the deaths of some 55 plus million “aborted ones” since the advent of Roe v. Wade (1973).

Every aborted human fetus either was once an intact human being, or never was such. The physician and patient can state reasonably that “in our opinion what was aborted was not an intact human being.” But, being reasonable persons, they should also concede that what they think is true is not the measure of what is true, simply because they believe so. Justice Felix Frankfurter observed: “That a conclusion satisfies one’s private conscience does not attest to its reliability” (JAFRC v. McGrath, 341 U.S. 123, 171 (1951)). They should concede also that, for all it may be known reasonably, every procured abortion results in the death of an intact human being. And until the advent of Roe v. Wade, never in the history of Western Civilization has a state turned over, or has been compelled to turn over, to any person’s “private conscience” the supreme rule over “communal matters of life and death.” And so said the Supreme Court in Wisconsin v. Yoder, 406 U.S. 205, 215-216 (1971): “The very concept of ordered liberty precludes allowing every person to make his own standards on matters in which society as a whole has important interests.”

In Roe v. Wade, the Court stated explicitly that the State’s interest in safeguarding the fetus is “important” throughout the gestational process: 410 U.S. 113, 162). And so said President Obama: “In matters of life and death, we are partners with God.” (2009, for full citation Google this phrase). And so says western medicine: “Our knowledge of fetal development, function, and environment has increased remarkably. As an important consequence, the status of the fetus has been elevated to that of a patient who should be given the same meticulous care by the physician that we have long have given the pregnant woman.” (Williams Obstetrics 139; 17th ed., 1985.) And so says more than two-thirds of the states of the United States. (Google: NCSL number of states with fetal homicide statutes.) And finally, so says western science, which is, by definition, secular and rigorously non-religious. As related in Van Nostrand’s Scientific Encyclopedia on p.4 (5th ed., 1976) (the Preface which contains this statement: “The editors … have attempted to stress the proven, generally accepted description of both new and old … concepts. In soundly controversial areas, however, where two, well-grounded schools of thought may be arguing while awaiting the results of further investigations and experimentation, both sides of such questions are given.”):

The creation of an embryo, and development of a fetus and, finally, the birth of an infant is a continuous physiological process commencing with conception, and ending with the cutting of the umbilical cord. It is not in any way a digital, step-wise process with distinct periods … Only for convenience in studying and teaching are certain rather fuzzily defined phases, or stages, of embryo and fetus development identified and given names …

The embryo and later the fetus is an individual entity, imbued with individualistic qualities {genes} which affect its rate of progress, much as later the progress of the infant to a mature adult will be determined by individualistic qualities. From a purely scientific standpoint, there is no question but that abortion represents the cessation of {a} human life. (See also Van Nostrand’s Scientific Encyclopedia, p.1056 (7th ed., 1989)): “At the moment the sperm cell of the human male meets the ovum of the female, and the union results in a fertilized ovum (zygote), a new {human} life has begun.”

Philip Rafferty About Philip Rafferty

Philip A. Rafferty is a self-employed criminal lawyer in the State of California, practicing from 1975 to the present, specializing in DUI law and criminal appellate work. He received a BA in philosophy and a minor in English in 1970 at Loyola University in Chicago. Rafferty obtained a law degree from Southwestern University's School of Law in 1974. He has worked in private criminal practice for over forty years, including extensive appellate and trial work. Additional specialized experience include DUI law and DMV License Suspension law. He has appeared before the California Supreme Court, the California Court of Appeals, and the Federal District Court of Appeals. He has written three books: A Silver Bullet for Roe v. Wade: Unraveling the Fabric of America (Tate Publishing, 2012); What's Really Going On With Pro-Roe v. Wade Catholic Politicians (Tate Publications, 2011); Roe v. Wade: The Birth of a Constitutional Right (U.M.I., 1992). He also wrote an article for an online law journal: "Roe v. Wade: A Scandal Upon the Court", Rutgers Journal of Law and Religion (2006). He has also written several articles for the Los Angeles Journal's "Forum and Focus" section.


  1. Avatar Tom Lanter says:

    Mr Rafferty;
    From an electrician’s standpoint I can tell you our legal system does not work. The Roe decision was created from thin air, only the agenda mattered. All lawyers with an IQ over 6 know the unborn baby is someone who should be protected by US law.
    I can tell you we have not had a pro-life president
    in 40 years because none has stepped out his front door and walked over to join the throngs of youth who descend on the Mall in DC every January. Can you imagine a president with the media in tow telling those kids I am going to do every thing I can to force your congress to over turn Row. No, neither party is pro-life. The slaughter will continue. Every third grader knows when mom is carrying a live baby in her tummy. Why don’t the pro-death lawyers admit this? Make no mistake lawyers are the in the for front of this movement and they could put an end to this lie over night. After 42 years, I am of the opinion that ABORTION can only be stopped by God Himself.

    Keep the Faith
    Tom Lanter

  2. Avatar Martin B. Drew says:

    Thank you, attorney Rafferty, this article was right on target. The word ” right ” and its idea has been misused and misapplied in relationships of persons and things . This word and idea expresses and defends a person’s position in life., such as the ancient divine right of kings or the Roman SPQR giving the emperor a right to command. But is it or can it be used in ” a woman’s right to chose “. Here it becomes obvious that all persons having freedom from God , with our faculties do chose amoral good or sin . This is not a right but a freedom . Killing of the innocent , including the unborn is human choice of evil. Roe and Wade created a monstrous acceptance of sin