Shortly after Cliff Zarsky‘s very recent arrest, he wrote an insightful commentary entitled “Why is an arrest at an abortion clinic necessary to challenge the constitutionality of the Roe v. Wade decision?”
Before a person can have standing in a court of law he must present evidence to show that in some way his constitutional or statutory rights have been denied, and he is entitled to due process and equal protection of the law.
The constitutional rights that have been denied to Cliff Zarsky are (1) He has been denied the right to the defense of the right to defend third persons, which is a Texas criminal law defense that is granted to all other persons who are tried for criminal trespass, so his 14th amendment of due process and equal protection are denied, and (2) He has been denied the defense of necessity and defense of third persons because the Roe v. Wade decision held unborn humans are not included as “persons” in the fifth and fourteenth amendments, and in Roe the woman’s right to privacy is greater than the fetus’s right to life, and Casey v. Pa. the woman’s right to liberty is greater than the fetus’s right to life.
State constitutional amendments, state legislation and criminal defense for third persons and/or necessity for “personhood” calls into question the validity of the holding in Roe v. Wade that unborn children are not “persons” possessing a right to life and to the equal protection of law under the Fourteenth Amendment. The rulings relied on Roe v. Wade in refusing to allow an unborn human being to be the beneficiary of efforts to save his life pursuant to the defense of third persons or necessity, even though such efforts would be allowed to save a newborn infant younger from conception than other unborn children still in the womb. Only the unborn among human beings, is decreed unworthy of such life-saving efforts. Indeed such efforts would be allowed in appropriate circumstances to save property or the life of an animal. The denial of the defense of third persons or necessity with respect to the unborn child is a grave injustice at odds with the norms of science as well as of common fairness. The refusal of the Court in Roe v. Wade to recognize the reality of unborn human life is anachronistic in the light of modern medical and technological developments. As a result Roe is rightly regarded as conferring a legal right to execute an innocent human being.
Justice Harry Blackmun claimed in the Roe case, “The word person, as used in the Fourteenth Amendment, does not include the unborn.” He came to this conclusion by asserting that “no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment, but conceded that if the “personhood of the fetus is established [the case for abortion], of course collapses, for the fetus’ right to life would then be guaranteed by the Fourteenth Amendment.” Roe, 410 U.S. at 156-157. Here is the evidence and cases that establish a fetus is a person within the Fourteenth Amendment, so the unborn human is entitled to the same due process and equal protection as all other persons.
THE TERM “PERSON” UNDER THE FIFTH AND FOURTEENTH AMENDMENTS INCLUDES ALL HUMAN BEINGS.
The Fifth Amendment in the Constitution of the United States provides that “[n]o person shall be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. The Fourteenth Amendment to the Constitution of the United States provides that “[no] State shall. . . deprive any person of life, liberty, or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.” Id. amend. XIV, Section 1. This amendment secures protection for the basic, minimum human rights any state must respect. It is imperative that categories of human beings not be read out of the terms of this amendment without the clearest demonstration of justification for such exceptions.
If there is any term whose broad scope demands unconditional respect, it is the term “person.” For whoever is not a person lacks not only the privileges of citizenship, but even minimum human rights and is no better off than property, entirely subject to the whim of the owner and whatever regulations the state may impose.
I will present many forms of evidence to show the trial court, appellate courts and the Supreme Court that unborn humans are protected by the 5th and 14th amendments, because the Supreme Court stated in Roe v. Wade “…if the personhood of the unborn fetus is established, the cause of abortion collapses, because the unborn’s life is protected by the guarantee of the 14th amendment.”
Zarsky has prepared a complete brief in defense of the human personhood of the individual preborn child. He has broken this brief into eight equally balanced, comprehensive and logical sections. For the purposes of this commentary, American Life League will share one of the eight sections in the hopes that the reader will be inspired to visit the brief and review each of the eight arguments.
However, before we do, a word of caution: At five different places in his brief, Zarsky uses the word “conception” to define the beginning of a human being’s life. American Life League has taken great pains to avoid the use of this word because it has been so drastically redefined by the cultural elite that it is no longer synonymous with the beginning of every human being’s life. This is why we use the term “biological beginning” instead and why we will urge Zarsky to use this term, rather than “conception,” as his trial moves forward.
Here is section G:
G. THE “PERSONHOOD” OF THE HUMAN FETUS IS ESTABLISHED BY THE UNITED STATES SUPREME COURT TEST FOR INCLUSION IN THE FOURTEENTH AMENDMENT IS: “LIVE, HUMAN AND HAVE THEIR BEING.”
There is no doubt that citizens of hostile nations, children under eighteen, convicted, comatose or mentally disabled individuals are each a class of persons. This is so, not because members of each class can prove their inclusion under the fourteenth amendment, but because they are included by virtue of their humanity. They are humans, live, and have their being. Levi v. Louisiana, 391 U.S. 68, 70 (1968) (discussing illegitimate children). Therefore, “[t]hey are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.” Id. Human offspring conceived but not yet born are likewise “humans, live and have their being.” They are “a form of human life,” Webster v. Reproductive Health Servs. 492 U.S. 490, 520 (1989) (plurality opinion), as are infants, toddlers, teens, adults, and the elderly. They do not need to overcome any additional hurdle in order to establish their right to presumptive inclusion within the term “person” as used in the Constitution, and there is no justification for the arbitrary exclusion of such children from the protection of basic human rights under the Constitution.
One additional note on the brief, which in its entirety, is a masterful legal argument that is fundamentally logical and factual in its scope, and thoughtfully prepared by a man who has dedicated his life to justice under the law and in society.* Throughout the brief, Zarsky emphasizes the valid definition of the word “person.” He makes it clear that what is at stake in this particular case is that if the preborn child, at any stage of his or her biological development, is viewed as anything other than a human person, there is no end to the havoc that can be perpetrated not only on this class of human beings, but on any other that a court might arrogantly presume to redefine as nonpersons.
*Among numerous other accomplishments, Cliff Zarsky, a Corpus Christi, Texas, attorney, served as a Nueces County district attorney prosecutor from 1958 to 1968, prosecuted felony abortion cases in the ‘60s, and has represented pro-life clients and causes in state and federal courts since 1974. He has served as president of Corpus Christi Right to Life, Inc. (an American Life League Associate group since 1992) from 1984 to 1987, and from 1996 onward. He has served on ALL’s Board of Advisors since 2002.
