Abstract
Is a living human embryo or fetus a “person” within the legal meaning of the term, as used in the Fourteenth Amendment to the U.S. Constitution? This article argues that this question is close, difficult, and exceedingly important. Roe v. Wade, of course, answered the question “no,” yet the Court acknowledged that, if the legal personhood of the fetus could be established, the case for a right to abortion “collapses” – “for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The Court nonetheless gave the question only passing attention in Roe, and subsequent scholarship for the most part has not addressed the question in a serious, balanced, systematic fashion. This article examines the issue of the constitutional personhood of the human fetus from the perspectives of the full range of usually-accepted methods of constitutional interpretation – text, structure, evidence of historical intention, precedent or practice, and policy – and concludes that the case for personhood is at least plausible and arguably much stronger than the case for the opposite conclusion that was the essential first premise of Roe.