Who is entitled to the Right to Life, Liberty, and the Pursuit of Happiness?
This 4th of July, many of us reflected on the plain language stated in the Declaration of Independence. I would like my readers to reflect on the plain language as stated in the Declaration regarding the source of human rights, and the role of government. Then I argue the Roe viability/dependency standard fails to recognize endowed unalienable rights in created human beings, and that States have a compelling interest in protecting human life at all stages of development.
The Source of Human Rights and Role of Government follow plain language
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."
Unlike England, where if one was born with a Divine Right, one may be King, in the United States the source of rights was credited to man’s creation and not birth right. Today there is no mystery regarding when human life begins. Even as the sun starts the day, fertilization starts a developing life which ends at death. Courts do not create genetic parentage, or offspring, people do. There can be no uncreation of life, life can only end in death. It is the fact that we are created uniquely unlike any other human beings that existed before us. We each have an independent identity that develops according to our DNA. In fact, humans continue to grow according to their DNA even if not placed in the biological mother’s womb or if it takes 27 years to be transferred to a womb after creation.
Being endowed by our Creator with unalienable Rights, means the rights come from the Creator and not from Government. Unalienable rights are endowed, self-evident and not to be taken by Government, but secured by Government.
Federal Government has three branches, the Executive, Legislative and Judicial branches. State Governments are similar. Each branch of Government according to the framework for the Constitution, The Declaration of Independence, is to recognize that all are created equal. Thus, before a court of law in this country there is no preferred treatment based the family one is born into. Lady Justice is sculptured as blind to health, wealth, age, race, status, size of the litigants before her. Before Congress there is a process to debate to implement just laws that should serve Government’s purpose to protect unalienable rights. In the Executive Branch there are Executive Orders that should serve to treat the governed as people endowed with unalienable rights.
The Dependent/Viability Standard Is Contrary to the Recognition of Unalienable Rights
The Judicial Branch in Roe v. Wade denied it knew when new life was created stating: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. Roe failed to protect new life, and instead characterized the unborn as potential life, rather than life with full potential that loses all potential on death.
Roe formulated a viability test, stating to be viable meant potentially able to live outside the mother’s womb, albeit with artificial aid. 410 U.S. 113, 160. At the time the Court placed viability at 24-28 weeks of human development. States were deemed not to have a compelling interest in protecting “potential life” until viability.
Today viability is a month or two earlier than the time of Roe. Recently a baby born at 21 weeks of development celebrated his first birthday.
In fact, viability can be at days less than one week of development. In vitro fertilization produces viable children under the Roe viability standard in the first week of life. Today we know that doctors freeze viable embryos, not dead embryos before 1 week of prenatal development and that they may be preserved for decades. This is not tissue, or potential life that is preserved, but unique human life at an early stage of development.
The viability standard fails to recognize the unique life of the unborn is endowed with an unalienable right, to Life, Liberty, and the Pursuit of Happiness, and that these rights, according to the Declaration of Independence deserve governmental protection.
It is the author’s opinion that when the SCOTUS examines the right of state government to protect human life at 15 weeks of human development in the case of Dobbs v. Jackson Women’s Health Organization, that SCOTUS should base its decision on the scientific fact the lives at stake are not potential life but lives with potential, so the state has a compelling interest in protecting all human life that has been endowed with unalienable rights, no matter the stage of human development.
It is also the author’s opinion that a viability/dependency standard for protecting human rights should be stricken as contrary to the interest of justice. When weighing rights should Lady Justice ask if the litigants are dependent on others for survival? Many who read this blog are aware of the dependency of the disabled, the elderly, infants, and children. Continuation of permitting dependency on another as a reason to deny unalienable rights is a dangerous precedent that allows a slippery slope to undermine the endowed human dignity of each person that deserves equal protection under the law.