POC, persons and the Court.

First posted on Introibo ad altare Dei 25 November 2006

“Logic is rare.”

- Sherlock Holmes[1]

I am a physician with specialty training as a pathologist. When folks think of pathologists, they think of dead people and autopsies. But I, like most pathologists, spend my days looking through a microscope at bits of tissue from living people, and make interpretations about what I see.

A case came along recently, labeled, "POC". POC is medspeak for "products of conception" and denotes just that: material from a pregnant lady's womb. Since intentional abortions are not performed in the hospital where I work, POC pretty much always represents the following clinical question: "This lady is in early pregnancy, and is passing blood and tissue from her womb. Is she having a miscarriage?" Now, there are several possibilities. It may be that the POC is just blood and uterine lining, and the mother is still carrying her baby. It may be that the POC is a "blighted ovum". In this case, the egg, though fertilized, was defective; there may be an early placenta, but an embryo never develops. Blighted ova represent a goodly percentage of early miscarriages. Another possibility is that there, in the POC, are not only placental fragments, but a real, honest to gosh little tiny embryo which, for reasons which will never be known, spontaneously miscarried. I had such a case recently, where the little tiny embryo was less than a half inch in length. The case thus involved two biological human beings: the mother and a dead, miscarried embryo. But, did the case involve two persons?

That is the crux of the abortion issue: is the unborn child a person under the law?[2] United States Supreme Court Justice Harry Blackmun, writing his opinion a generation ago in Roe v. Wade, said this:

"All this...persuades us that the word 'person', as used in the Fourteenth Amendment, does not include the unborn." [3]

This was a critical point for Justice Blackmun, so critical that his entire line of argument to decriminalize abortion rested upon it:

“The appellee… argues that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment… If this suggestion is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed…”[4]

It is also a critical point for us, today, a generation later, to keep in mind when discussing abortion or any of it's malignant progeny: embryonic stem cell research, cloning, in vitro fertilization, what have you. The question in front of us is not, "Is it human?" or "Is it alive?" Of course it's human, and of course it's alive. There's nothing else it can be. The entity in question is a biological human being, and no one - no one - seriously contests that. The question is this: "Is it a person, meaning, is this living biological human being entitled to protection under the laws of our land? Or, is it not?" The answer given by the Supreme Court of the United States is, "no, we have defined a class of living human beings who are not persons, and, therefore, are entitled to no protections whatsoever under our laws."

This is not, of course, the first time that the Supreme Court has defined a class of living human beings who have no protections under our laws. On March 6, 1857, U.S. Supreme Court Chief Justice Roger B. Taney handed down a decision regarding one Dredd Scott, a black slave suing for his freedom. The court's decision was this:

"A free negro, of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States."[5]

The question in Scott v. Sanford was whether blacks had any rights under the Constitution, and the answer was "no." The question in Roe v. Wade was whether the unborn child has any rights under our Constitution, and the answer was "no." In Scott blacks are acknowledged as "persons", that is, biological human beings yet, being chattel, they were denied legal protections. The 14th Amendment corrected this situation, stating that all persons - that is, all biological human beings - have equal protection under the laws. That's why Justice Blackmun saw the Amendment as the primary obstacle he had to overcome in Roe: he had to declare the unborn child, a biological human being, an unperson, otherwise "...the case, of course, collapses..." And that is what he did.

Twice in our history, our Supreme Court has defined classes of biological human beings who are not entitled to legal protections under our laws. The first time was the Scott v. Sanford slavery case. The second time it was the Roe v. Wade abortion case. Given that the law works on precedent, and given that there are two precedents for the Supreme Court to define a class of human beings who have no protection under the law, I can see no substantial reason whatsoever why, in the future, other groups of biological human beings might not also be excluded by the highest Court in our land.

The Catechism of the Catholic Church says this:

"Human life must be respected and protected absolutely from the moment of conception..."[6]

Theological reasoning aside, there is a great deal of practical wisdom in this position. If the line for legal protection isn't drawn at the moment of conception, then anyplace else the line is drawn is arbitrary. Yesterday it was blacks, today it's unborn children up to the moment the head comes out of the birth canal, and tomorrow, who knows? The old and expensively ill? Infants under a year of age? Teenagers unable to gain admission to Princeton? It's arbitrary. But the Church is very clear about that little embryo under my microscope: were it alive, it should be treated as a person. But to the Supreme Court, even if it were alive, it's still just POC.

[1] The full quote is, “Crime is common. Logic is rare.” in, The Adventure of the Copper Beaches, The Complete Sherlock Holmes, Sir Arthur Conan Doyle, copyrights 1892-1922. This edition is Dorset Press, Doubleday & Co., 1988. Preface by Christopher Morely
[2] A longer version of the material in this section was published as T.P. Collins, "Dred Scott & Roe v. Wade", New Oxford Review, April, 2006.
[3] Legal Information Institute Supreme Court Collection, Roe v. Wade, available through Legal Information Institute, http://straylight.law.cornell.edu/supct'html/historics my emphasis in all Court quotations. Hereafter referred to as LII. See para. 3.
[4] ibid, Roe, Section IX A.
[5] LII Collection, Scott v. Sanford, Syllabus, para. 4.
[6] Catechism of the Catholic Church 2nd Ed. United States Catholic Conference, Inc.-Libreria Editrice Vaticana, Washington, DC. 1997. Para. #2770. My emphasis.