. . . a “fetus” is a BABY, we may as well admit it, but it doesn’t matter. The mother is PRIMARY, and she still should get to CHOOSE (death), if she so desires.”

The above is not verbatim, but it is the message she conveyed.

That baby was 8 pounds, 2 ounces. He was going to be born in a couple of days. How could you not define that as a person. That was a viable life.

When human life begins is a purely biological question and its answer is irrefutably when a human sperm fertilizes a human ovum. When actionable legal rights vest is a purely legal question informed, but not necessarily determined by biology. At the time of Roe v. Wade, Texas law held that legal rights vested in a human child when the child was born alive, and not a second sooner. Indeed, the abortion statute under consideration in Roe was, itself, evidence of the state’s adherence to the “born alive” rule, necessitated by the fact that, since statehood, Texas defined “homicide” as the unlawful killing of a person or individual born alive, i.e., fully delivered of the mother and breathing independently. Simply put, before the Legislature enacted the fetal homicide and amended the wrongful death statutes in 2005, Texas never recognized vested legal rights of personhood in a child before its live birth.

In 1935, in Jordan v. Magnolia Coca-Cola Bottling Company, the Texas Commission of Appeals, in an opinion adopted by the Supreme Court of Texas, held that the parents of a child born prematurely due to a motor vehicle accident caused by the driver of a delivery truck, but who died a few days later of the injuries inflicted thereby, could not sue the driver’s employer for wrongful death because, at the time of the accident, the child was not a person (within the meaning of the wrongful death statute) to whom the driver owed a duty of ordinary care. In so holding, the Court examined the longstanding legal distinction in the Texas Penal Code between a homicide and an abortion, noting that the former required a live birth and the latter did not. Since the wrongful death statute was the civil counterpart to the homicide statute, the Court concluded that it must be interpreted consistently and required the live birth of a child for actionable negligence under the wrongful death statute.

The Supreme Court of Texas subsequently modified this holding to permit actionable negligence under the wrongful death statute as long as the child was born alive. In other words, the duty of ordinary care owed to a person vested retrospectively upon the live birth of the child, and the parents could sue for the child’s death even though the actionable negligence occurred before the child actually became a person under the statute. This was the status of the law of personhood at the time of Roe v. Wade.

There were numerous attempts thereafter to get the Supreme Court to interpret the wrongful death statute to include stillborn children, but in every instance, the Court declined to do so, demurring that such a change in the law require legislative action. In one particularly difficult decision, a Texas court of appeals held that a full term child in the process of being born by breach delivery never became a person for purposes of the wrongful death statute, despite being substantially delivered, i.e., arms and legs moving freely and skin warm and pink, because a prolapsed umbilical cord so impeded complete delivery and deprived the child of oxygen that, when completely delivered, the child was unresponsive, dusky blue and never took an unassisted, independent breath (Wheeler v. Yettie-Kersting Hospital).

Ironically, if the court of appeals had employed the reasoning adopted by the Supreme Court in Jordan, it would have held that a baby in the process of being born is a person for purposes of the wrongful death statute because the abortion statute made it a crime punishable from five years to life to kill a child “during parturition” or during active labor and delivery, but before actual live birth. In other words, the Texas abortion statute effectively recognized fetal homicide as a distinct, but similarly punishable crime while maintaining the born alive distinction in the Penal Code. This is also the only provision of the Texas abortion statute that survived Roe v. Wade, with an early footnote in the opinion specifically stating that the constitutionality of the parturition provision was not before the Court.

The Texas legislature finally, in 2005, enacted the fetal homicide and amended the wrongful death statutes to recognize vested legal rights in an unborn child from conception through natural death. Unfortunately, once the courts begin the process of addressing the constitutionality and application of these new statutes, which do not merely turn the clock back to pre-Roe status, but for the first time expand the legal rights of persons to include the unborn, it will become more and more evident why our forefathers settled on the born alive rule in the first place.

For example, even though these statutes expand the rights of personhood to the unborn, they also, for the first time, qualify the most important of these rights, i.e., the right of self-preservation. Before Roe, had the Texas Legislature recognized legal personhood before live birth, then the possibility of a legally irreconcilable conflict existed between the rights of self-preservation of both the mother and the child. If the continued development of the unborn child became a potentially mortal threat to the life of the mother, as in an ectopic pregnancy, how was the law to choose the mother’s fundamental right to self-preservation over the unborn child’s equally fundamental right? To do so would alter the very nature of the right and imbue the state with the authority to refuse its recognition, choosing the life of one person over the other, even when the only basis for so choosing was the mere existence of the child.

The Legislature was also dealing with the very real evidentiary difficulties associated with determining personhood predicated upon the conception and development of the unborn child. There was simply no bright line equivalent to live birth during a pregnancy given the state of medical science. Even today, with sonograms and other such enhanced medical technology, viability is a moving evidentiary target subject to inconsistent application by judges and juries. Moreover, even though the unborn child itself is conclusive evidence of conception, when criminally prosecutable or civilly actionable misconduct occurred in relation to conception, and whether such misconduct actually caused the child’s death, as opposed to a spontaneous miscarriage, is just as problematic from an evidentiary standpoint.

Finally, fetal homicide and expanded wrongful death statutes raise real equal protection and due process difficulties. Why is one unborn child entitled to legal protection when another, identically-situated unborn child is not equally so entitled? Similarly, due process demands that the law not be applied in an arbitrary or capricious manner. But the legal protection of one unborn child compared -with another similarly-situated unborn child depends upon what may be the mere “caprice” of the mother. This is not to suggest that the choice so made is made lightly or without deliberation, but merely to recognize that the choice may be so made since neither Roe nor Casey requires the mother to justify her decision in any manner.

By adhering to the born alive rule, the Legislature simultaneously maintained the fundamental nature of the right of self-preservation and protected the life of the unborn subject only to the mother’s right. Since the state may impair a fundamental right only when a compelling state interest exists, the real constitutional misfire in Roe was not that the Court refused to recognize personhood in the unborn child. The Supreme Court was bound by Texas personhood law which clearly did not recognize such legal personhood in an unborn child. The real constitutional misfire was for the Court’s majority to overrule the considered decisions of the people of all fifty states that a compelling interest existed for the protection of the unborn. Whether a compelling interest existed was an inherently subjective question best left to the collective wisdom of the people through their legislative representatives, especially when a very strong presumption existed that states that ratified the Fourteenth Amendment did not intend by their ratification to invalidate abortion laws already on their books. This is why Justice White’s dissent described the majority’s holding as an exercise in raw judicial power.

“That baby was 1 pound, 2 ounces. He was going to be born in a few months. How could you not define that as a person? That is a viable life.”

The federal government does not defign murder, each Sovereign State does. That is the biggest problem with Roe v Wade: the feds decided what wasn’t murder when they had no authority to do so.

Nutstuyu on February 7, 2013 at 7:14 PM

This…

tdarrington on February 7, 2013 at 6:19 PM

The federal government does not defign murder, each Sovereign State does. That is the biggest problem with Roe v Wade: the feds decided what wasn’t murder when they had no authority to do so.

Let’s say, for argument’s sake, that we settle on the date of five months. Should we then conclude that the exact same living being ought to be denied legal protection at four months and 30 days?

That’s why temporal criteria are lousy. You need to define the essence of humanity, i.e., what makes a human being a human being. Cut off an arm or a hand and you still have a human being — but the mind, the brain at work that defines an individual, is essential. Without the mind you just have a corpse, a lump of tissue as it were.

I’m glad to see Erin Burnett having a bit of an “aha” moment. It’s actually shocking that CNN didn’t simply forbid airing the segment. I’m sure the left will not forgive Ms. Burnett’s lapse in liberalism, but I’d like to express my gratitude for her willingness to express, even if only in a late stage, a pro-life opinion.

CNN’s Erin Burnett seemed to experience an “a-ha” moment on her program this week, as she covered the story of an unborn child a useless lump of tissue killed removed by a drunk driver in Colorado.

soooo what is the problem here?/

But should someone’s relative “wantedness” determine whether or not she counts as a human being?

exactly- you know how pro-life candidates are asked tough questions by the media, and pro-choice candidates are not? well i wish more pro-choice candidates were asked this question and other questions about fetal homicide laws. abortion would be a lot less popular in america if pro-choicers were asked more questions. you think todd akin looked stupid? imagine all the pro-choice candidates who would look even more stupid than he did.

UPDATE – The Live Action story notes that Colorado Democrats and their allies at Planned Parenthood recently blocked an abortion-neutral bill that would have made fetal homicide a crime — thus denying legal rights to even wanted unborn children.

that’s an interesting point that more americans need to know. abortion lovers would rather neglect WANTED unborn children than protect unwanted unborn children. that says a lot about them.

The child, of course, has no say in these matters, and cannot speak in her own defense.

which is why we will never stop speaking up for them!