The legal personhood of women

The notion that human personhood under the law ought to begin at the moment of conception is nonsense on its face. The fertilized egg that becomes a zygote is at the very earliest stages of development, and it may very well not continue its development to birth for any number of natural causes. The idea of personhood under the law has to do with membership in society along with legal rights and duties of the individual in relation to society. An individual who has not yet been born into society cannot have either rights from it or duties to it.

There are artificial persons under the law such as corporations and the natural world, and there was a time in American history when autonomous human beings were not given full personhood under the law. During the debate on the ratification of the Constitution of the United States, James Madison explained how slaves were considered to be both property and persons. Their condition of servitude however, for the sake of a compromise that would allow the Constitution to become the law of the land, was the legal impediment to enslaved human beings having the legal status of whole persons. Thus, they were counted for the sake of taxation and representation as three-fifths of a person.

According to Madison writing in Federalist LIV, the enslaved person was a moral person who ought to be protected from violence by the law and subject to punishment for violence that s/he commits (197). Yet, they were still property who did not have freedom of movement or action and did not have political or civil liberties. Madison writes:

“It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion; because it is not only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and that it is admitted that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.” (197)

The difference between artificial persons and those who were considered moral but not fully political persons is that none of these entities lives inside of another person. The problem of abortion rights has always been a conflict of concerns--the concern for the developing human and the concern for the living, already-born woman. This attempt to make a zygote/ embryo/ fetus a legal person is no less than an act of tyranny against woman that would turn every pregnant woman into a slave of the state, especially those who do not want to carry a baby to term, and most especially those who were impregnated through rape and/or incest. A slave is not only an individual who can be bought and sold, but a slave is also one whose freedom of decision making regarding one’s own body has been taken away. For the state to compel a woman to carry a child to birth is tantamount to a seizure of her womb for the purposes of the state.

Article One of The Universal Declaration of Human Rights says: “All human beings are born free and equal in dignity and rights.” This implies that human rights begin at birth. To compel a woman to carry a child is an assault on her human dignity and it is inherently unequal since no such legal force can be brought to bear against men.

Further, if a zygote/embryo/fetus is considered a legal person, do they count for the purposes of representation and taxation? When we take a census, does a pregnant woman count as two people? If she is pregnant with twins is that three? Do frozen fertilized human eggs count?

And if the state has the power to force a woman to carry a zygote/embryo/fetus to birth, does the state also have the power to prohibit a woman from getting pregnant?

Most of the conversation regarding this issue focuses on the developing unborn human being. The philosophical and theological status of the unborn human is a question that women ought to consider at this very difficult time in their lives. Those of us who consider abortion a tragedy ought to explain the nature of the tragedy to a woman as she makes her decision. However, the theology of human life is not the province of the state. The state has an interest in protecting the rights of the individual with legal personhood the moment a child is born and lives outside of the woman’s body. Further, it has an obligation to see that the child has all its basic needs for health and survival. Too many pro-life advocates are not willing to compel the state to care for natural persons after they are born.

I say that the power of a woman to decide what goes on inside her own body is a power that is protected under the 10th amendment to the Constitution. It says:” The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The “people” includes women.

Valerie Elverton Dixon  | Nov 8, 2011 4:13 PM