The Fetus as an Individual, Invalidating Roe vs. Wade

Roe v. Wade Unconstitutional

We are under a Constitution, but the Constitution is what the judges say it is.

Charles Evans Hughes, 1907

Justice Rehnquist dissented in Roe v. Wade that the court had overstepped its jurisdiction and essentially legislated from the bench.[1] But the holding was far more unconstitutional than merely an abuse of its appellate jurisdiction under fact and law.[2] The law the Supreme Court created in Roe is an unconstitutional and unlawful Bill of Attainder.[3]   

A Bill of Attainder is a legislative act sentencing a person to death. Some might argue a judicial holding is an interpretation of existing law, not a legislative act. But, the court essentially repealed a state statute and replaced it with its own; thus, Rehnquist’s legislation from the bench. The unlawful Bill of Attainder fits.[4]

The Fetus is an Individual under State Protection

There is a conflict of law created by Roe. As of this time, a fetus is not considered a person with full rights under the constitution. The Texas law Roe struck down specifically protected the life and welfare of the fetus, but the States curiously continue to have a compelling interest in the health, safety and welfare of the fetus.[5] Does the State have a compelling interest, or not?

It is common knowledge that a pregnant woman who abuses drugs and alcohol can be arrested. The death of both a mother and her fetus counts as two manslaughters, or manslaughter and a feticide. Therefore, the fetus is considered by the law to be a living entity, and it is a double standard for the State to protect the fetus from a mother’s abuse, yet not the mother’s intentional murdering of it.

In addition, under probate law, ‘after-born- heirs are defined as being in gestation at the time of the will, but “treated as living . . . if the individual lives one-hundred and twnty hours or more after birth.”[6]

This further conforms to the legal definition of a person being a human entity, a living individual. In direct conflict with Roe, a fetus is, under a preponderance of law, a person, albeit unborn, but nevertheless, conceived and impliedly under parentis of the mother.

Roe v. Wade denies this, reasoning that:

[U]nborn children have been recognized as acquiring rights or interests by way of inheritance or other devolution of property, and have been represented by guardians ad litem. Perfection of the interest involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole  sense. (Emphasis added.)

In reality, the previously quoted probate law impeaches J. Blackmun’s assertion that the law requires birth. The recognition of a fetus, or unborn person, is predetermined as living at the time of the will. That is the law. If it dies within 120 hours of birth, its interest in the inheritance lose standing under intestate succession. Roe, however, allows a mother to terminate the unborn person well within the 120 hour window, which violates the will of the testator and lawful succession.

Therefore the life of the fetus is to be protected by the guardian ad litem, or executor, as a portion of the will protected under probate law regarding consanguine distribution is being subverted by an overt and immoral act.

Roe is a double standard narrowly protecting a mother’s social and financial self-interest and freedom to engage in unprotected sex,[7] but not expecting her to accept the potential responsibilities. If the Griswoldian[8] freedom to use birth control is not sufficient family planning, then let the mother choose a good husband and prepare a home before risking pregnancy, The right of feticide as abhorrent to any reasonable person, and worthy of George Washington’s Thanksgiving Prayer, asking forgiveness for ‘national transgressions.’[9]

The most common constitutional argument is that a fetus is not a “person born.” This is biased and a tunnel-vision interpretation of the 14th Amendment ‘person born’ clause; that only a ‘person born’ is under U.S. jurisdiction and a citizen of the United States.[10] By that selective reasoning, human beings who are unborn have no rights. However, that caveat was specific to children born of alien residents. It cannot reasonably be interpreted as an all-encompassing definition of ‘person.’ There are too many other aspects of law that say otherwise.

Roe was a class action represented by only one person who, as Justice Rehnquist dissented, did not factually or adequately represent the class. Instead, Justice Blackmun applied liberal judicial discretion to fabricate a new law in the face of twenty-one states that claim a legal compelling interest in the health and welfare of a living human being. In contrast, even one fetus faces with the undeserved and inhumane termination does represent the entire class for purposes of protection.

All that is needed is a beneficiary that desires an ‘after-born’ legacy in his will and testament to challenge a mother’s planned abortion. O, any citizen, organization, or offer of the court can challenge the inhumane, unjust, and unconstitutional sentence of death on a fetus. Once the definitions are clear, the ‘bill’ of attainder written and issued by the judiciary act of legislation . . . the space on this bill blank,’ only to be filled in by the mother as a private act with a doctor willing to violate his Hippocratic Oaths is, on its face, unconstitutional.

[1] “The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one . . . partakes more of a judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.” Rehnquist dissenting in Roe V. Wade, 410 U.S. 113 (1973)

[2] U.S. Const. Art. III, § 3, Cl. 2

[3] U.S. Const. Art. I, §§  9, Cl. 3, and 10, Cl.1

[4] A bill of attainder is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 846-847 (1984); citing from Nixon v. Administrator of general Services, 433 U.S. 425, 468 (1977)

[5] See the ‘compelling interest test,’ Weber v. Aetna Casualty & Surety Co. 406 U.S. 164, 179 (1972)

[6] Uniform Probate Code, § 45-2-108

[7] Cf. Pierce v. Society of Sisters, 268 U.S. 510 (1925)

[8] Griswold v. Connecticut, 381 U.S. 479 (1965) A case involving birth control for married couples.

[9] George Washington’s Thanksgiving Proclamation, 1 Annals of Congress 914 (1789)

[10] Albeit persona gratis and, arguably, not illegal aliens. However, this is another constitutional question.


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