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Mark Beatty

The Constitutional Rights of the Unborn
By Mark Beatty
Sep 20, 2006 - 3:43:00 PM

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A “pro-choice” activist once told me that he believed an unborn human being is a human being, but that the mother should be allowed to kill her baby simply because having the baby was inconvenient. Many think abortion is a taboo subject, because of the complexities of personal choice, medical counsel, or “religion.” If one is able to get past the emotions and misleading language, however, abortion really comes down to two simple issues: 1) Is an unborn human being a human being; and 2) Is it all right to kill one human being for the convenience of another human being?

The second question is the easiest to address, killing one human being for the convenience of another is generally frowned upon by most civilizations, although: Adolph killed about six million individuals of Israeli decent as the “final solution” to various social and economic “problems;” Islamic Fascists kill infidels like us Americans to purify the world and to earn a worldly heavenly reward; and, in Silence of the Lambs, Buffalo Bill killed young girls to sew their skin into a dinner jacket. Most people will agree that these “exceptions” are hideous and will resort to the first argument, “The unborn human being is not really human.”

When one group of humans decides to kill or discriminate against another group of humans, they usually redefine the to-be-harmed group as subhuman: In Rwanda, the Tutsis were referred to as “cockroaches” before 800,000 of them were hacked to death with machetes; In the pre-civil war Dred Scott case, the black man was referred to as property rather than a person; When justifying abortion, an unborn human being is referred to not a child but as a “fetus.” (“Fetus,” however, might have been a bad choice because “fetus” means an unborn child).

But how many attributes does it take to be considered a human? Consider the children’s song, “head, shoulders, knees and toes … eyes and ears and mouth and nose …” Few can rationally argue that an unborn human being does not have a human head, a human nose, and everything in between. The argument usually comes back to, “The children are not yet born, so they are not human.” This argument is in effect saying, “A human being must have certain life experiences in order to be a human being.”

Consider the strange consequences this creates. On December 18, 2004 Lisa M. Montgomery murdered 23-year-old Bobbie Jo Stinnett and cut the 8-month-old fetus from Bobbie Jo’s womb. Ms. Montgomery was later caught and the healthy baby was reunited with her father. The strange irony is that any such 8-month-old baby is a non-person and the mother can have the baby’s brains sucked out in a partial birth abortion. When a baby is violently ripped out of the mother, however, the baby becomes a legal person and that baby’s brains are protected. This seems to be saying to citizens of the United States, “If you have a friend or relative who wants to abort their baby, the only way to save the baby is to cut it out, at which time the baby would be protected from being killed.”

This “humanness by distorted definition” seems analogous to the Dred Scott decision. In abortion the law says, “Experiencing birth is an essential human attribute without which one cannot be a human.” In the Dred Scott case, the Supreme Court denied humanity to Afro-Americans essentially saying, “Being white is an essential human attribute, without which one cannot be human.” The Court stated blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it."

Usually one cannot even get to the discussion of whether an unborn human being is a human or not. The terms “pro-life” and “pro-choice,” sidestep the whole discussion. As a civil rights attorney, I would say, “Wait a second, I am pro-choice and would happily represent clients who want to stop the government from intruding into their God-given rights of privacy.” Because I believe that an unborn human being is a human being, however, I would also say, “Hey, you cannot take away someone’s life for the convenience of another.” What a dilemma, I am both pro-choice and pro-life!

Perhaps the biggest problem is emotions associated with abortions. Studies indicate that a woman who has had an abortion feels; “anger, shame, guilt, self-hatred, loss of confidence, nightmares, flashbacks, and the pain of anniversaries” (see This suggests that someone who responds with rage about abortion might be a person who has had an abortion. Unfortunately for that individual trying to convince herself that, “The abortion was really okay except for the @#!@ pro-lifers,” avoiding the issue will keep that person in emotional slavery. Denial is usually not good psychological therapy. Perhaps these emotions also characterize a father who influenced a girl friend to abort their child.

Words, minds and hearts are deceptive and prevent many from reaching the conclusion that an unborn human being is a human being. The rights of the unborn to constitutional due process are then denied because they are not legally “human.” As I read the Constitution, however, the preamble clearly indicates future generations are being contemplated: “and secure the blessings of liberty to ourselves and our posterity.” Who is our “posterity” if not those yet to be born?

Mark Beatty MA, THM, PHD, MBA, JD is a Republican candidate for the US Senate in Hawaii ( For Mark’s other articles see

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