Can we tell when a civilization is in decline? Consider two recent events.
Leona Helmsley, the New York real estate developer known in the tabloids as "the Queen of Mean," left a 12 million dollar trust fund for the care and feeding of Trouble, her Maltese terrier. She gave nothing to two of her grandchildren, but she did leave her chauffeur 100,000 dollars. As John Gapper commented in the Financial Times, Trouble is in the same league as "Incitatus, Caligula's horse, which slept in a marble stable and was fed oats mixed with gold flakes." Caligula wanted to make Incitatus a consul of Rome. "Perhaps," said Gapper, noting a parallel between ancient Rome and today's America, "the rich and powerful treating animals as if they were humans is a symptom of the decadent last days of empire."
Compared with Trouble, the unborn child is really in trouble. Last April, in Gonzales v. Carhart, the Supreme Court upheld the federal Partial-Birth Abortion Ban Act of 2003. Justice Anthony Kennedy wrote the majority opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Partial-birth abortion is used in the second trimester or later. As described in the Act, the partial-birth abortionist "delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and ... performs the overt act, other than completion of delivery, that kills the partially delivered fetus."
The Gonzales ruling upholds a prohibition of only one method of executing an unborn child. It will not stop a single abortion. Abortionists easily avoid the Act by killing the child first inside the womb by a lethal injection.
The Kennedy opinion portrayed the homicidal reality of partial-birth abortion in such graphic terms that none of the Justices could possibly have had any doubt about the humanity of the victim. Yet they all agree that the unborn child is a nonperson and therefore has no right to life.
The Fourteenth Amendment protects the right of a "person" to life and to the equal protection of the laws. In Roe v. Wade, the Court stated that if the personhood of the unborn child were established, the pro-abortion case "collapses." The Roe Court held, however, that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn," whether or not the unborn child is a human being. Roe is therefore the same as a ruling that an acknowledged human being is a nonperson. The principle that an innocent human being can be defined as a nonperson and deprived of the right to life is the principle that underlay the Nazi extermination of the Jews and the 1857 Dred Scott case in which the Court said that slaves were property rather than persons.
Every Justice now on the Court accepts the Roe holding that the unborn child is a nonperson. Even the "pro-life" Justices, Thomas and Scalia, agree that, in Scalia's words, "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." That position confirms that, as far as the U.S. Constitution is concerned, the unborn child is a nonperson. If an innocent human being can be subjected to death at the discretion of another whenever a state legislature so decides, he is a nonperson in the eyes of both state law and that Constitution.
If the unborn child can be treated as a nonperson so can anyone else. The law is an educator. The highest Court proclaims the constitutional legitimacy of the intentional infliction of death on the innocent as an optional problem-solving technique. It does so with respect to the youngest. Why are we surprised when it is applied to others, as in Columbine, Virginia Tech, Terri Schiavo's case, etc.?
In 1974, Cardinals John Krol, Timothy Manning, John Cody and Humberto Medeiros insisted before a Senate committee that a constitutional amendment "should clearly establish that, from conception onward, the unborn child is a human person in the terms of the Constitution. ... Protection of human life should not depend upon geographical boundaries." The Cardinals had it right. A pro-life position should insist not only on effective prohibitions of abortion but also on the treatment of all innocent human beings as persons entitled to the right to life.
The object is to restore among the American people the conviction that life is inviolable because it is a gift from God. A civilization might survive the pampering of a horse or a dog by people with more money than brains, but it cannot survive the systematic depersonalization of its own innocent human beings.
Charles E. Rice is professor emeritus at Notre Dame Law School. He can be reached at 633-4415 or rice.1@nd.edu
The views expressed in this column are those of the author and not necessarily those of The Observer.
