Is a Blastocyst a Constitutional Person?

by Brendan Beery

During last Thursday’s “debate,” Republican presidential hopefuls contorted themselves like college kids playing a drunk round of Twister trying to squeeze to the right of one another on abortion. Rubio might have won that fight, saying, “What I have advocated is that we pass law in this country that says all human life at every stage of its development is worthy of protection. In fact, I think that law already exists. It is called the Constitution of the United States.”

This is intellectual tripe of an especially stinky kind. A nice applause line, no doubt, when the audience for it has the collective discernment of a pod of clapping seals. But as a legal statement, Rubio’s claim was about as wrong as one can get.

The Constitution of the United States is not a religious screed etched into ancient stones. It is a legal document. It does not proclaim any philosophical bloviations about the value of human life or the temporal contours of a human life. The Constitution is directed exclusively to the already born and is exclusively about the already born. And even as to the living, our forefathers were rather less than enlightened when they did take a stab at what was meant by “person.” According to them, even a fully developed adult human could not claim more than 3/5 personhood if he happened to be of African descent. It hardly seems that someone who couldn’t resolve the question of personhood for many already born could have resolved the same question about a Blastocyst.

But Rubio’s answer was ignorant for another reason, too. He seems not to understand – oddly given that he is a United States Senator – that the Constitution only addresses itself to governmental conduct. (There is only one exception to this; it’s the Thirteenth Amendment, which bans slavery and involuntary servitude.)

The Constitution creates, empowers, and limits the authority of government. Even when the Constitution mentions rights, it is to instruct the government not to mess with them rather than to instruct citizens that we have them. (The First Amendment, for example, does not create freedom of speech; it says that “Congress shall pass no law … abridging freedom of speech.” It’s not a command for us to possess or exercise some license; it’s a command for the government to get lost, and freedom of speech is presumed to have already existed.)

Rubio must think that the Constitution, because it protects due process and requires equal protection, somehow proscribes abortions. Those constitutional clauses, however, appear in the Fourteenth Amendment, which says, “No State shall make or enforce any law which shall … 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.”

Did you catch those first three words: NO STATE SHALL? The Constitution only protects a fetus from a mother’s choice to have an abortion if a) a fetus is a person AND b) the mother is A STATE. The same goes for the provider of abortion services: if a private doctor is not the state, then he or she cannot trample on the due process or equal protection rights of any person, let alone a Blastocyst.

It won’t do to argue that a woman’s choice to have an abortion is state action because it is permitted under state law. I’m not the state just because I’m permitted under state law to practice law or drive a car. And state laws on abortion are generally not permissive; they are typically restrictive, so a woman’s choice to end a pregnancy is never the result of state encouragement or enabling. Certainly no state law requires abortion. Even if we were to assume that all abortion is murder (an absurd assumption, to be sure), no person in this country enjoys a constitutional right not to be murdered. While the government must refrain from abusing us, it is not a guarantor that we won’t be abused.

Rubio has classed himself with Sarah Palin, who thought that her First-Amendment rights had been abridged by a private radio station. While most citizens can be excused for having a less-than-scholarly approach to the Constitution and its provisions, the same cannot be said for an aspirant to the highest office created by the Constitution. And Rubio is a lawyer, to boot. That makes it less likely that he miscomprehends the Constitution than that he’s lying about it.


One thought on “Is a Blastocyst a Constitutional Person?

  1. Pingback: How Anti-Gay Laws Could Backfire | BeeryBlog

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