Riga, P.J.

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The Linacre QuarterlyVolume 51 | Number 2 Article 11May 1984Equal Protection of the Laws and the 14thAmendment: Value or HumanityP.J. RigaFollow this and additional works at: https://epublications.marquette.edu/lnqRecommended CitationRiga, P.J. (1984) "Equal Protection of the Laws and the 14th Amendment: Value or Humanity," The Linacre Quarterly: Vol. 51 : No. 2 ,Article 11.Available at: https://epublications.marquette.edu/lnq/vol51/iss2/11Equal Protection of the Laws and the 14th Amendment: Value or Humanity? P. J. Riga The author is a professor at the South Texas College of Law in Houston. The Helms hearing about a constitutional amendment concerning human life, held in the summer of 1982, may not have created much interest (or heat), but it created some important light. It is also strange and disturbing that its basic thrust was not widely commented on. It was disturbing because the "pro-choiCe" people have now shifted the basis of the abortion argument to exactly the place it should have been from the beginning : the nature of the abortus. Witnesses for the bill- geneticists, embryologists, etc. -offered testimony of an overwhelming nature, which led to only one conclu-sion: apart from conception, there is no plausible moment of t he beginning of the human individual. . Incredibly, the opponents of the constitutional amendment sid e-stepped this momentous issue and said that what really mattered was not whether the unborn was a human being, but whether it was a human being valuable enough to protect. This sudden shift from a question of fact to one of value has not seen such argumentation since the case of Dread Scott v. Sanford (1857). For years (at least, since 1973) , the whole movement to repeal t he abortion decisions (one hesitates to call them "laws" since they were simply " discoveries" by the Court where none had seen them before) 176 Linacre QuarterlY has been opposed by vociferous and explicit denials of this central and crucial fact, namely, that the unborns are humans-in-being. The unborn were, said the pro-choice people, "products of conception," "protoplasm," "alpha," "cells," etc. All of a sudden, the locus of the argument has changed and the question of fact conceded: "Yes, of course, the unborn are humans-in-being, but the 14th Amendment protects only persons (a legal concept}, and this status is given only to those we want or value." This was essentially the argument of the New York Court of Appeals in Byrn v. New York City Health & Hospital Corp. (1972), a case challenging the liberal abortion laws of New York. Of course, said the court, the unborn are human -that is granted. The real issue, however, is whom does the law protect, for it is the law which says who are protectable persons, and who are not. This judicial positivism at the time of Byrn was honest and refresh-ing because, as they say, courts are not in the business of making laws but interpreting laws. It was for the legislature, limited by the Consti-tution, to determine who is a legal person, said the New York Court of Appeals. Since the New York legislature had declared that the unborn were not legal persons, at least for the first 24 weeks, they had no protection under the laws and could be killed at will. This simplistic and positivist view of the relationship between legality and morality has the advantage of being simple and morally painless. It is also irrelevant to the issue, which was : are the un!Jorn humans-in-being? Now, for the first time in a national forum, the " pro-choice" people have conceded, like the New York Court of Appeals, that the unborn are human beings, although because they are unwanted, t.hey are with-out rights. In other words, the rights of the unborn are dependent, not upon the inherent fact of their being human, but upon value or Wantedness. This is legal positivism, but it is, at least, clear and forth-right. The Helms hearing brought out and settled this major point of the abortion debate of the past 10 years: the humanity of the unborn had never been a point of real importance to the pro-choice people; it had only been an arguing point all along. It is at least refreshing to clear the air and have the basic issues faced once and for all. It reminds one of the editorial in California Medicine, more than a decade ago (1970), which forthrightly said: [T] he result has been a curious avoidance of the scientific fact , which everyone really knows, that human life begins at conception and is contin· uous whether intra or extrauterine until death . The very considerable semantic gymnastics which are required to rationalize abortion as anything but taking a human life would be ludicrous if it were not often put forth under socially impeccable auspices . This same argument is not new in constitutional law or juris-Prudence; it is at least as old as Dred Scott (1857), and probably much older. May,1984 177 The question was looked at in Roe u. Wade (1973) and resolved 1 the negative : Does the 14th Amendment protect the unborn? Was the intent of the framers of that amendment ~o include_ the unbo~ The Supreme Court, in a rather sloppy histoncal analysis, concluo that it was not. On the contrary, the argument of the framers_was broad enough ) encompass the unborn within its sweep, precisely because of t ~ nature of that historical argument surrounding the birth of the 14 Amendment. How was this so? The lawyers in 1866 who drafted the bill knew _well the ar~mf. t of Chief Justice Taney in Dred Scott. It was precisely that. thmk1 g and reasoning about human beings which the l~wy~rs of the blll had o overcome, once and for all, in and by a constltutwnal amendment f Dred Scott was to be effectively overturned. Taney Denied Protection It will be remembered that Chief Justice Taney was. de~ermined. to deny blacks every possible protection under the Constltutwn be~a se that was the only way to uphold the system of slavery. Every desig ,a-tion of humanity had to be eliminated , bec~use th~t -~auld have bt en fatal to his argument. Taney was not a juridical positlVlst. Th~ Ro~ an law had clearly seen that even slaves were personal humans-m-be1 1g. The Roman jurists simply said that the law excluded these p~rsc ns from its protection. Taney had no such simplicity because the histt ry of the common law, under Christian influence, held clearly that every human-in-being was a person, protectable by and through 1 he law Therefore Taney had to desperately exclude blacks from l he notion of persons: he had to deny their humanity. Thus, through 00 pages of tightly reasoned historical analysis, blacks were never called "people" or "human" or " men" or "citizens." Taney al':"ays called them simply "a degraded race," "a subordinate and infenor class of beings," who possessed no power or rights ~e~o?d wha~ _t~e whlte man chose to give them. But the beginnings of JUridiCal posi~Ivism were . also present: Taney held that the framers of the Constitutwn had no intention of including slaves as citizens. When the drafters of the 14th Amendme~t set o~t to compose tha! document it was this reasoning which had to be ehmmated from th Constituti~n once and for all. For this purpose, they sought the clearest word, undimmable by quibble, with whic~ to secure foreve~ the rights each of us should enjoy under a shelten~g ~~w · T?e wo~ they chose was "person," which, from the most pnm1~1ve h_Ist~,ry ~~ Western thought and philosophy, only meant a "human m bemg (t d persona in Roman law, which applied to all people, ~ven ~laves , a~d the prosopon in Greek law). No person, no human-m-,~emg, w~~ or ever again be considered a person because he or she was valuable 178 Linacre QuarterlY not, much as the slave was valuable property to the slaveholder with whom he, the slaveholder; could do as he pleased. Every human was a person, protected by the amendment. Every person, every human-in-being, had the equal protection of the laws which the states and the federal government must protect via the 5th and 14th Amendments. It is therefore illogical, unhistorical , and a complete denial of the very intent of the framers to now come around and give that amend-ment an exclusionary meaning by elimmating certain humans from the equal protection of the laws- the very thing which its framers set out to eliminate forever from the text of the Constitution. In the abortion debate, once again, unborn human beings (now, by admission of the pro-choice people themselves) are denied the equal protection of the laws, exactly as were the blacks in Dred Scott. But the pro-choice strategy stumbled exactly along the course Chief Jus-tice Taney had followed. The Constitution, said Taney, did not bestow personhood on the black man, because that is not what the founders had historically in mind. At the Helms hearings, the pro-choice people argued in a similar way: although person would ordinar-ily include the unborn (just as the Declaration of Independence would ordinarily include the black man, because he was human, said Taney), since the unborn had never (since 1866) received the full benefit of law, the amendment should not be read with them in mind. The unborn, who are humans-in-being, are denied the equal protection of the laws because they are not persons, not because they are humans-in-being, but because they are unwanted. The Helms hearings have therefore re-enacted the same argument and debate concerning Dred Scott. If my historical analysis is correct -and it is difficult to see how it is not - then the burden of proof is Upon the pro-choice people to show, by clear evidence, or, at least, by probability, that this was not the intent of the framers of the 14th Amendment. Change in the Question The whole question has changed since 197 3 . A decade later, the Pro-choice people concede the humanity of the unborn, but the issue now is not their humanity, but their acceptability to their elders. It is refreshing, at least, to finally be talking about the same thing, and not arguing like passing armies in the night. It is difficult to develop a solid jurisprudence of and for this new ·stance of the pro-choice people. Human rights, we may conclude from their analysis, are not inherent in the human being, but are " con-ferred" by the people who might want them or not. The historical roots of this jurisprudential doctrine of "wantedness" are not happy ones, since, often in the past, many groups were at one time or another, "not wanted." May,1984 179 More to the point, the logic of this philosophy is now t 1g extended beyond birth to those who have already been born, but i ·n defective. Since they, too, are not wanted, by reason of their phy al or mental defect, such children are now commonly allowed to st ve to death in a form of postnatal abortion. The logic of the juri~ u-dence of wantedness has been extended to yet another grou} of humans-in-being. Philosophy, like reality, cannot be hidden by we 1s. In other words, it is difficult to escape the logic of the philosc (lY of life which we espouse. Not only does the "wanted" philoso . Y contradict the historical intent of the framers of the 14th Amendm nt, but also, more importantly, in denying some the protection of t eir humanity, the rights of the rest of us are jeopardized in a basic d real sense. The issues here, as in Byrn and Roe, are the philosophy nd foundation of human rights. At bottom, the abortion debate is one of inherent human ri~ tts, which are founded either in the nature of the human person or ir his or her being wanted. There is no middle term between these wo inherently contradictory philosophies. "Pro-choice" is a weasel " Jrd which bypasses this essential question. 180 Linacre QuarterlY BOOK REVIEWS Church Property, Church Finances, and Church-Related Corporations Bishop Adam J. Maida, D.D., J.C.L., J.D. and Nicholas P. Cafardi, J.D. Catholic Health Association, St. Louis, Mo . 63134 , 1984, 339 pp. Catholic h ealth facilities are prominent among the Church ministries which face the growing challenge of survival. Many of the factors involved are presented in a recent article in Hospital Progress entitled "Survival Strategies for Not-for-Profit Hospitals" (Dec. , 1983, pp. 40-60). Another crucial factor, often underesti-mated, is the religious vocation shortage and hence , a steady decline in religious personnel to staff Church apostolates. It should be of prime interest to all bishops, priests, doctors, nurses and all who are involved in or benefit from Catholic health services to search for an answer to this multi-faceted challenge. Solid grounds for optimism will be found in this recently published book. The first 11 chapters are devoted to a "Church Perspective"- a lucid explana-tion of the 57 canons of the new Code of Canon Law (in effect since Nov. 27, 1983) which make up Book Five of that code entitled "The Temporal Goods of the Church." The n ext 19 chapters present possible solutions in applying canon law concepts to civil law procedures in the administration of church property . These suggested procedures are backed by the extensive scholarship and experi -. ence of the authors both in canon law and in civil law. The authors provide a Powerful incentive for reading and digesting the contents of this book : The requirements of canon law explained in this handbook, and the sug-gested civil law forms they should take . . . if they are properly followed . : . will allow the ministries .of the Church to thrive and flourish and to ensure that the hungry are fed , the naked clothed, the uneducated are taught the truth, the sick are healed , and hope is held out to those in despair (Preface, p . XIV). Since canon law and civil law concepts are somewhat un familiar to the average reader, the authors follow a consistent policy of repeating basic concepts and of summarizing recommended procedures. This effective didactic ploy is enhanced by a 30-page "Lexicon of Canonical and Legal Terms" at the end of the book. This provides a handy · "key to comprehension . " The ir own transla t ion into English of the 57 canons of Book Five of the Code of Canon Law is another plus feature- "clarity incorporate'd . " In a "Church Perspective"- chapters one through eleven , a canonical capsule on "The Temporal Goods of the Church" comes first . The Church is people. Th e .effective pursuit of the spiritual mission of the Church , however, depends in large Part upon the judicious administration of temporal goods. In view of this impera-tive, the Church regards the established units or agencies in advancing the mission of the Church as public juridic persons (form erly known as " moral persons"). They are called " juridic" because such entities are "creatures" or creations of the law ("jus + dicit"). People, who make up the Church , are mortal. Public juridic llersons continue on , and on , and on and hence can provide assurance that the May, 1984 181 

Equal Protection of the Laws and the 14th Amendment: Value or Humanity

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Equal Protection of the Laws and the 14th Amendment: Value or Humanity

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