Footnote 54

I was re-visiting the Roe v. Wade decision again today, and I had to stop at Footnote 54, which says:

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. The exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. 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?

There are other inconsistencies between Fourteenth Amendment status and the typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas the woman is not a principal or an accomplice with respect to an abortion upon her. If the fetus is a person, why is the woman not a principal or an accomplice? Further, the penalty for criminal abortion specified by Art. 1195 is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If the fetus is a person, may the penalties be different?

While I disagree vehemently with the ultimate findings of Roe v. Wade, this reasoning of the Court makes perfect sense. If, during argument, the State of Texas did assert that preborn children were protected under the Fourteenth Amendment, why did the Texas Penal Code treat the killing of unborn children differently than it treated the killing of other human beings? For review, here is the wording of the sections of the Texas Penal Code that were struck down by Roe v. Wade:

"Article 1191. Abortion

"If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By `abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

"Art. 1192. Furnishing the means

"Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

"Art. 1193. Attempt at abortion

"If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided [410 U.S. 113, 118] it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

"Art. 1194. Murder in producing abortion

"If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder."

"Art. 1196. By medical advice

"Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother."

I fail to see anything in that language that indicated that Texas lawmakers had given even an inkling of thought to the idea that preborn children possessed the inalienable right to life or that they fell under the protection of the Fourteenth Amendment. And, as the Roe v. Wade opinion pointed out, why weren't the women seeking abortions guilty of any crime under that statute? As much as I hate to admit it, the Court was right in striking down that law. Of course, what they should have done as a remedy was to determine that the word "person" in the Fourteenth Amendment meant "a human being" and to order the States to fully protect the right to life, and guarantee the equal protection of, all human beings, regardless of age or stage of development. Instead, the Court ruled, as it did in Dred Scott v. Sanford (1857), that certain human beings could be treated as property and could be either bought and sold or disposed of at will.

What the State of Texas should do and must do is enact laws that actually do recognize that preborn children are persons under the Fourteenth Amendment. The Supreme Court has already indicated that this would be consistent with the Constitution, both in Footnote 54 and in the statement in Part IX of the Roe v. Wade majority opinion that "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment."

The position that our Governor Rick Perry and so many other supposedly "prolife" leaders hold, that "abortion should be legal only in cases involving rape or incest or when carrying a pregnancy to term would threaten the woman’s life," has no logical or constitutional basis, as a careful reading of the Roe v. Wade decision will show. It is unfortunate that many of the "prolife" organizations which normally support such candidates, like Texas Alliance for Life, have refused to support personhood laws which would actually protect preborn children. Are they complacent, afraid, or acting out of self-preservation (i.e., if abortion became illegal, would there even be a need for Texas Alliance for Life?)?

Texas has already laid the framework for future laws which would fully protect preborn children from the murder that is going on throughout the state. Current law, specifically Tex. Penal Code §1.07 (26), says that an individual "means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth." Tex. Penal Code §19.02 plainly states that a person commits the offense of murder if he "intentionally or knowingly causes the death of an individual." We will be urging Texas lawmakers to repeal Tex. Penal Code §19.06, which excludes unborn children from the protection of this statue defining and prohibiting murder if the killing was committed by the child's mother or her abortionist. All other abortion regulations should also be repealed so that abortion becomes simply another form of murder, punishable like any other form of murder. I have drafted a blueprint of how such legislation might look, found here: Page 1, page 2, and page 3.


The question is, will there be a representative or a state senator with the courage and the will to propose such legislation and the ability to persuade enough of the other lawmakers to support it? We will be contacting all of them between the November elections and the beginning of the Texas Legislative Session in January. It is way past time for the State of Texas to stand up against the over-reaches of the federal government (and this includes all three branches of government), especially when such over-reaches deny the most basic of rights, life, to an entire class of human beings.