At the Wall Street Journal’s website, James Taranto criticizes former senator Rick Santorum (R., Penn.) over abortion. Speaking of President Obama’s position on the issue, Santorum said he found it “almost remarkable for a black man to say, ‘we’re going to decide who are people and who are not people.’” Taranto, like many other people, objects to what he calls “Santorum’s obnoxious invocation of the president’s race.”
But Taranto goes on to make two less common criticisms that are, I think, misguided.
First, he says that Santorum’s remark was
[i]gnorant because Santorum himself proceeds to deny that it is necessary “to decide who are people and who are not people.” Without drawing that line, our legal system could not function. “A rat is a pig is a dog is a boy,” PETA founder Ingrid Newkirk said in the 1980s. Imagine if the Supreme Court adopted that premise as the basis for constitutional law.
If Santorum had said that it is wrong and dangerous to draw a distinction between living human beings who are persons and those who are not—to suggest that there are human beings who are un-persons—then his comment would have been immune to this criticism (and, in my view, completely correct). Santorum was speaking a little loosely in the course of an interview, but does anyone really doubt that this is the point he was trying to make?
Taranto then moves to another criticism.
To be sure, an unborn child, unlike a dog of any age, is human, and the idea that it should be treated as a legal person is not self-evidently absurd. But neither is it self-evidently correct, and abortion laws before Roe v. Wade were never predicated on the idea that legal personhood precedes birth. It would be no less revolutionary for the courts to redefine “person” in the way Santorum urges than for them to redefine “marriage” in the way he deplores.
Santorum thus gets it exactly backward when he characterizes the president as saying, “We’re going to decide who are people and who are not people.” That decision was made long before Obama came along. The existing definition of “person,” which excludes the unborn, is a longstanding and well-settled element of the Anglo-American legal tradition. Santorum and others have every right to call for a radical change in the law, but the burden of persuasion lies with them.
I’m not sure why Taranto is so convinced of this point. The chief way that the law could in theory recognize fetal personhood is by protecting the fetus from intentional homicide. That is exactly what the pre-Roe abortion laws did. And while some academics have tried to argue that these anti-abortion laws were motivated by something other than a concern for the lives of human fetuses—Justice Blackmun credulously cites some work to this effect in Roe—the argument is without merit. (For details on this, see my chapter on the historians’ brief in The Party of Death.)
In a 1985 law-review article, James Witherspoon reviewed the nineteenth-century American abortion statutes and found that many of them referred to the unborn “child” and several treated its deliberate killing as “manslaughter” or “murder.” Many states listed these prohibitions among “offenses against the person,” and they were often grouped alongside homicide statutes or offenses against children. The law, in short, considered unborn human beings to be persons.
It is true that Anglo-American law has a long tradition of references to “persons” that do not apply to the unborn. Justice Blackmun, in Roe, notes that the Constitution commands states to extradite any “Person charged in any [other] State with Treason, Felony, or other Crime, who shall flee from Justice,” commenting rather obtusely that this reference to “person” can apply only post-natally. But just as clearly this reference has nothing to do with toddlers, either, which does not imply that they are a) not persons b) who can therefore be killed with legal impunity.
Taranto has advanced a pretty strong claim about the Anglo-American legal tradition. I don’t believe that the burden of proof for it can be met. In fact, I don’t believe there is much evidence for it at all.