“Another category . . . is the pre-conscious fetus. These human beings have many of the characteristics of the permanently unconscious patient — lack of awareness and lack of the capacity to experience pain and suffering — but have the potential for developing normal consciousness. We believe there are more similarities relating to consciousness between the end of life and the beginning of life than previously appreciated. If this is the case, the arguments concerning when human personhood ends will have significant impact on when human personhood begins during gestation. One important potential legal implication of this view could be that the most critical constitutional threshold during pregnancy for recognizing fetal rights over maternal rights is the point at which the fetus develops consciousness, albeit minimal, and the capacity to experience pain and suffering, rather than at the point of viability or birth. Roe v. Wade should have focused more on consciousness, not viability, as the more crucial threshold for the balance between maternal and fetal rights.”
Indeed, the determination of what constitutes a person under the fourteenth amendment is a question of law to be determined by the federal courts [Doe v. Israel, 358 F.Supp. 1193 (D. R.I. 1973)]
Twenty-seven years later, I find I have to return to this issue and again cite Doe v. Israel in connection with the “Personhood” ballot measures (rejected by voters in Mississippi and Colorado).
Mississippi’s “Personhood” initiative (No. 26) defines the word “person” in the Mississippi Constitution as “every human being from the moment of fertilization, cloning or the equvalent thereof.” Pro-Life & “Personhood” advocates hail the measure as a means of undoing Roe v. Wade. Just the opposite is true. Abortion foes appear blissfully ignorant that the federal courts have already rejected a state law personhood/”life begins at conception” challenge to Roe v. Wade. In 1973 Rhode Island’s legislature passed a law (“AN ACT Relating to Abortions)” to define personhood from the moment of conception:
“Whereas, The state of Rhode Island, in its fulfillment of its legitimate function of protecting the well-being of all persons within its borders, hereby declares that in the furtherance of the public policy of said state, human life and, in fact, a person within the language and meaning of the fourteenth amendment to the constitution of the United States, commences to exist at the instant of conception”
The statute went further and criminalized abortion. The law was challenged as being unconstitutional in direct violation of the Supreme Court’s holding in Roe v. Wade. The case was: Jane Doe v. Richard Israel, Attorney General of the State of Rhode Island, 358 F.Supp. 1193 (D. R.I. 1973). This decision was affirmed by the First Circuit Court of Appeals. The U. S. Supreme Court denied certiorari. Israel v. Doe, 416 U.S. 993, 94 S. Ct. 2406, 40 L. Ed. 2d 772, 1974 U.S. LEXIS 310 (1974). The District Court declared Rhode Island’s “personhood law” unconstitutional in no uncertain terms:
“Can it be said that the decisions of the Supreme Court in Roe v. Wade and Doe v. Bolton make frivolous any claim that the Rhode Island criminal abortion statute on its face is not unconstitutional? Is the constitutional defense presented here “essentially fictitious?” With due respect and in no way meaning to mitigate the sensitive and consuming nature of the abortion controversy, I am constrained to answer both questions in the affirmative. For reasons hereinafter stated, I find the statute to be unconstitutional. Defendant and intervenors have raised two principal and interrelated arguments in defense of this statute. It is first argued that the state legislature has found that life begins at conception and has protected this life from homicide. Secondly, it is argued that the state legislature has declared a fetus to be a “person” within the meaning of the Fourteenth Amendment to the United States Constitution and that this legislative declaration is binding on this Court. Both arguments are insufficient.The Rhode Island legislature apparently read the opinion of the Supreme Court in Roe v. Wade to leave open the question of when life begins and the constitutional consequences thereof. This is a misreading of the opinions of the Supreme Court in Roe v. Wade and Doe v. Bolton.It is apparent from the opinion in Roe that the argument that life begins at the instant of conception and that the taking of this fetal life would be homicide was raised by the parties and amici before the Supreme Court and that the Supreme Court considered this argument in reaching its decision. A reading of the opinion as a whole can result in no other conclusion. Moreover, there are numerous specific indications that this argument was raised and considered.First, the Texas statute found to be unconstitutional in Roe had previously been found to be constitutional by a Texas court on the grounds, in part, that the Texas statute implicitly recognized human life prior to actual birth and that the definition of human life was for the legislature and not the courts. 410 U.S. at 119, 93 S.Ct. 705, 35 L.Ed.2d 147. Second, the court went to great lengths to detail the history of attitudes and laws about abortions, including various concepts of when life begins. At 129-146, 93 S.Ct. 705. Third, the argument was specifically addressed at 147, 93 S.Ct. 705, where the court declined to accept Texas’ argument that the State’s interest was defined by the “fact” that life began at the moment of conception and instead recognized that the State’s interest was in the protection of potential life. Fourth, the court held, in 1200*1200 the face of the argument that life begins at conception, that a fetus is not a person within the meaning of the Fourteenth Amendment, at 156-162, 93 S.Ct. 705. Lastly, the court noted that those in medicine, philosophy, and theology had been unable to agree on when life began and that, in any event, the law has never recognized a fetus as a person in the whole sense. At 158-162, 93 S.Ct. 705.The circumstance that the argument presented to and rejected by the Supreme Court in Roe is presented again in the guise of a “factual” declaration by the Rhode Island legislature does not change the result in Roe or the obvious applicability of Roe here. The state through the passage of legislation, cannot establish a presumption which violates the constitutional rights of the persons affected by such laws, as the women of Rhode Island are affected here. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 75, 13 L.Ed. 2d 675 (1965); Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772 (1932).As the Supreme Court stated in Roe, 93 S.Ct. at 731:”[W]e do not agree that, by adopting one theory of life [the state] may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . and that it has still another important interest in protecting the potentiality of human life.” (emphasis added)A further indication that the issue has been conclusively determined against these Rhode Island statutes is given by the post-Roe action of the unanimous Supreme Court in refusing to reconsider its remand of the Connecticut abortion cases for further consideration in light of Roe and Doe and in dismissing the 1201*1201 appeal for want of a substantial federal question in Byrn v. New York City Health & Hospital Corp. Nor does the Rhode Island legislature have the power to determine what is a “person” within the meaning of the Fourteenth Amendment. Such a question is purely a question of law for the courts, independent of any power in the state legislature to create evidentiary presumptions. It has always been the Supreme Court that has given content to the term “person” under the Fourteenth Amendment. The argument of intervenors pointing to Supreme Court decisions based on state recognized interests in property misses the point that the Supreme Court exercises an ultimate, independent judgment about what “property” is property for purposes of constitutional protection. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Municipal Investors Ass’n v. Birmingham, 316 U.S. 153, 62 S.Ct. 975, 86 L.Ed. 1341 (1942); Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 58 S.Ct. 443, 82 L.Ed. 685 (1938). Furthermore, as amicus curiae has argued, while the States have traditionally established a network of property and contract rights, they have not done so as to life, liberty or person. There is little reason to accept or give determinative weight to varying state versions of the existence or character of the rights at stake. Such issues are exclusively questions of Federal constitutional law. See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L.Ed.2d 510 (1965).The Supreme Court has held in Roe v. Wade that a fetus is not a “person” within the meaning of the Fourteenth Amendment. As amicus to this Court, Professor Thomas I. Emerson, has so well stated, “Clearly the Federal courts must reserve ultimate authority to say what the meaning of the Fourteenth Amendment is. Surely the States could not, by legislative or judicial fiat, overturn the Dartmouth College case, 4 Wheat. 518, 4 L.Ed. 629 (1819), by finding that a charter was not a `contract’; or overturn Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), by finding that the right to welfare benefits was not `property’; or overturn Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), by finding that the right of parents to send their children to private school was not a `liberty’; or overturn Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), by finding that black children were not `persons’. If a Federal Constitution is to exist, these decisions must be made by the Federal courts.”It is sheer sophistry to argue as the defendant does that Roe v. Wade and Doe v. Bolton can be nullified by the simple device of a legislative declaration or presumptions contrary to the court’s holding. Indeed it is a surprising attempt by one independent branch of government 1202*1202 to invade and assume the role of the other. The right of a state to declare an entity does not carry with it the judicial prerogative to determine the constitutional status of such entity.Finally, it must be said that the Supreme Court having ruled on this issue, its judgment is the law of this land. Under our scheme of government, it is the Supreme Court, not state legislatures, that ultimately determines the meaning of constitutional guarantees. Marbury v. Madison, 1 Cranch 137, 2 L. Ed. 60 (U.S. 1803); McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579 (U.S. 1819).Because R.I.G.L. § 11-3-1 which prohibits the procuring, the counseling or attempting a miscarriage except when necessary to preserve the woman’s life cannot survive a constitutional attack, § 11-3-2 and § 11-3-3, being integrally interwoven with it, must also fall. It is clear that the “conclusive presumption” of § 11-3-4 is also foreclosed by Roe and that § 11-3-4 must fall. Section 11-3-5, the savings clause, having nothing to operate upon, it too must be void.”
The United States Supreme Court has the final word on the interpretation of the United States Constitution. It is simply futile for Mississippi or any other state to attempt to enlarge the universe of “persons” under the Fourteenth Amendment. In fact, not even Congress can pass legislation to undo Roe v. Wade. In a brilliant law review article the late Professor Thomas Emerson at Yale detailed the constitutional folly of the “Human Life Bill” (a bill in Congress to define life from the moment of conception). Simply put, neither Congress nor the states can undo Roe v. Wade. When the Fourteenth Amendment was passed in 1868, abortions were common enough to suggest that the state legislatures that had ratified the Amendment did not consider fetuses to have rights. Merely because a state considers a fetus a “person” under state law does not “trump” the Fourteenth Amendment or Roe v. Wade. Cf. Webster v. Reprod. Health Servs., 492 U.S. 490 (U.S. 1989)( the U.S. Supreme Court specifically upheld a state’s right to enact abortion restrictions, even where the state defines life to begin at conception. Missouri law that “The life of each human being begins at conception” did not invalidate Missouri’s restrictions on abortion law).