Trees Have Souls

Due process is interpreted from the 14th amendment. It is protecting a right that all people share. Here, the right is bodily autonomy (like abortion or homosexual sex). Here, this is given strict scrutiny protection. This means that no law can take away the bodily autonomy unless it is neccesary to a compelling governmental interest (up to the courts standard for why is the law necessary and if the interest is compelling).

With abortion, they did not go with the usual strict scrutiny, but chose a trimester approach in Roe. Then it was changed into what we have now - an undue burden standard (From Casey). This means that before the point of viability in a fetus, there can be no law restricting abortion that would cause an undue burden to recieve an abortion. This has been loose here, but that is a different argument, not one I am making. After viability, laws can restrict abortions entirely (except in the health of a mother), because that is the point that the law protects the unborn child. The court determined this arbitrary point of viability. My argument is thus. The point of viability is bad. We need to use the precautionary principal and say that the child has rights from conception.

Now, here is why Roe should be unconstitutional. I will even give you the point that women have a fundamental right to choice to have an abortion. I stipulate that is true. But the Court in Roe has said, "[i]f 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.” This means, if personhood is life, then the fundamental right to life wins over woman's fundamental right to choice.

So when is life? Life begins at fertilization and that is not in dispute. So then, what is personhood? Since there is scientific uncertainty today over when there is personhood, the Court should handle the abortion issue differently. They should not come up with a magic point in time (whether it be when the heart beats, when the child could live on its own, etc.) that determines personhood as that is plainly nonsensical. What should be done is when there is scientific uncertainty, like there is when determining life in terms of personhood, the Court needs to err on the side of caution.

When we do not know whether the child has reached a stage where it has personhood and thus, the right to life, we should assume that it does have the right to life, as this will do least damage to the child. In Stenberg v. Carhart, Justice Kennedy (who was in the majority in Casey) agreed with this point when he stated that “courts must exercise caution . . . when medical uncertainty is present.” This is what is widely known as the “precautionary principal.” This states that if an action or policy has a suspected risk of causing harm to the public, environment, or in our case, life itself, then in the absence of scientific consensus, the burden of proof that it is not harmful falls on those taking an action or making a judgment that may or may not be a risk. Determining personhood would fall here since there is no scientific consensus of when a child has personhood (again, it could be at heartbeat, viability, pain, trimesters, etc.). So, the person arguing for a specific point (like heartbeat or viability) for personhood would need to pass the burden of proof that this would not harm personhood. Since personhood could be at any point before heartbeat or viability (going back to fertilization), the person arguing for the point will never meet the burden showing it will not harm any person if you use the point. The only point that meets the burden of is at fertilization, when life begins. Here, it is scientifically proven that at this point, no life would be harmed as it is the very first point personhood can exist. This not only protects the life of a child by protecting it at the starting point of life, but it also promotes the best interest of the child (what better interest is there than life itself?). Therefore, with all of this information, it is clear and obvious that since life first starts at fertilization, that is the point personhood should be set at since this is the only point that can be scientifically determined to pass the precautionary principal. The precautionary principal places personhood at human life, where it should have always been. So, the unborn child has its own bodily autonomy rights starting at life (fertilization).

Thus, since women and men have bodily autonomy rights, what wins out? The choice to abort or life? In these situations, the court has a balance of the interest test. Which interest is more important? My argument is life outweighs 9 months. But don't just take my point of view, lets see how the supreme court weighs in on this in Roe. In Roe, as stated above, they explain that if personhood was found, then it outweighs choice. In my argument, personhood is at fertilization (aka life). Thus, the court agrees with me if they use the precautionary principal and life would win over the choice to have an abortion. It doesn't matter what you or I think.

They did not use the precautionary principal though and that is where I believe they are wrong. They chose an arbitrary point in time. Now you say to follow precedent (this is called stare decisis in law). I say yes, we do need to follow precedent. However, sometimes the courts go against precedent in case law. For example, in abortion, the precedent was strict scrutiny, then trimester, then undue burden. The precedent changed. Same with separate but equal. Precedent changes and it should here based on the precautionary principal.

Finally, saying there is a life, but no personhood is ridiculous. This is advocating of the murder of a life since they don't have the made up legal term of "personhood." This is the same argument as allowing slavery since they didn't have personhood. When there is life, there is personhood. This protects the most rights.

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