The Blackmun Myth
Pro-lifers should be realistic about their short-term goals.


Last month, a federal court upheld South Dakota’s law that women seeking abortion be informed “that the abortion will terminate the life of a whole, separate, unique, living human being.” This is good news for people who believe women should have full information about abortion. But make no mistake: The South Dakota law will not, as some pro-lifers believe, pose a “challenge” to Roe v. Wade.

The law is consistent with the trend in criminal and tort law toward protecting the unborn as human beings. In recent decades, legal protection of the unborn as persons has developed state by state through fetal-homicide and wrongful-death laws. Today, 36 states have fetal-homicide laws, 24 of which protect unborn children from the time of conception, and 38 states have wrongful-death laws, which protect unborn children at least after viability. (As a practical matter, however, the application of these laws has been limited by the U.S. Supreme Court to incidents other than abortion — e.g., vehicular homicide.)

Over the past few years, a very different legal definition of “personhood” has been proposed in various states. These “personhood” proposals have the specific aim of “challenging” Roe, yet they are heading toward a brick wall, because they are based on a clear misreading of Justice Blackmun’s language in the 1973 decision.

The proposals sometimes attempt to define human life as beginning at conception (or fertilization). That’s well and good, if properly drafted, and such laws are in force in many states. But the mistaken belief is that such a definition will repair an omission in Roe or present facts that the Court didn’t know about. This is wrong for several reasons.

The myth has been widely reported that Justice Blackmun stated in Roe that “we don’t know when life begins.” Some state legislatures have come to believe that they can answer that question by asserting that life begins at conception. What Blackmun actually wrote (pp. 156–157 of the Roe opinion) was: “The [state of Texas] argue[s] that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, [Jane Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

Nevertheless, the urban legend has spread throughout the Web. The standard description is captured in the following excerpt from a website called “Christian Life and Liberty”:

According to the 1973 Roe v. Wade decision, personhood “collapses” the abortion “legal” [sic] argument:

The 1973 US Supreme Court Roe v. Wade decision instructed that if “personhood” for the “fetus” was established at fertilization, with no exceptions, then the [so-called] “legal” [sic] argument for abortion “collapses” [“[so-called]” and “[sic]” in the original].

There are several fundamental problems here. First, this is a classic case of reading the language out of context. The phrase “suggestion of personhood” in Blackmun’s opinion clearly refers to the earlier phrase “within the language and meaning of the Fourteenth Amendment.” It does not mean “personhood” in any broader medical, moral, or legal sense. Blackmun is emphasizing the meaning of “person” within the 14th Amendment.

Second, no state can — by statute or constitutional amendment — change the meaning of the 14th Amendment to the federal constitution. The 14th Amendment can be changed only by another federal constitutional amendment or by the U.S. Supreme Court’s changing its interpretation of the 14th Amendment.

Thus, the following extrapolation from Blackmun’s language (on the same website) is clearly wrong:

Establishing in law (by statutory change to the state’s code of laws, or by a state constitutional amendment) legal “personhood” for pre-birth human beings, at fertilization, with no exceptions, satisfies the requirement spelled out in the infamous 1973 Roe v. Wade decision, to “collapse” the [so-called] “legal” [sic] argument for abortion.”

Third, the misguided argument then quotes footnote 54 of Blackmun’s opinion, without realizing that Blackmun is being ironic: 

Exceptions” to legal “personhood” are unconstitutional, as explained in the text of the 1973 Roe v. Wade decision, and in a Justice Blackmun footnote therein [emphasis added]:

“When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other State are all abortions prohibited. Despite broad proscription, an exception always exists . . . But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother’s condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment’s command?….”