Judge Napolitano is wrong!

I admire and have enormous professional respect for Fox News Channel senior judicial analyst and former New Jersey Superior Court Judge Andrew Napolitano.  When he opines and provides logical reasons, for example, that Hillary Clinton violated this or that federal statute, and therefore should be criminally indicted, he enjoys much credibility with me.

But when Judge Napolitano, a self-described Libertarian, insists that a human “person” must be legally defined as such from the moment of conception, as he does in his latest article: “Killing Babies,” he is simply flat out wrong. That’s not a credible legal opinion. That’s his religious belief.

Napolitano readily concedes that: “The linchpin of Roe vs. Wade [the SCOTUS decision affirming a woman’s right to an abortion] is the judicial determination that the baby [sic] in the womb is not a person.” He knows that if a fertilized egg is constitutionally defined as a “person,” then all abortions, regardless of the circumstances, would be banned. That, of course, is exactly what he wants.

You see, Napolitano believes that God creates a new “person” and endows His creation with a full palette of human rights, specifically federal constitutional rights, at the moment of conception. In short, his religious beliefs have convinced him that a fertilized egg is already a “baby” at the moment of conception – legally a “person.”

Napolitano, like so many other fervent anti-abortion rights advocates, including SCOTUS Justice Antonin Scalia, wants to impose his Christian religious beliefs upon all of us as a matter of law. Those religious beliefs are profoundly irrational, illogical, anti-liberty, and unconstitutional.

Moreover, this religious belief that a new “person” exists from the moment of conception, is a very recent one indeed. It’s not a traditional belief. No known ancient civilization, for instance, ever embraced the concept that the unborn were persons. That is an historical fact which is certainly true for Western Civilization as well.

One won’t find any support for the concept of unborn personhood in the Holy Bible. The Jewish tradition has always been that one becomes a person at birth. Jesus Christ was, as we all know according to the Bible, a Jew, and Christians have for many centuries observed the same Jewish traditions.

Catholics did not come to the belief that a new life begins at conception until well into the 19^th century. Even then, though they considered abortion a sin, they still believed that individual personhood and the consequent acquiring of rights arose at birth.

Evangelical Christians, those who represent the core of today’s anti-abortion advocates, actually arrived at the belief much later than Catholics. As late as the 1970’s, they were generally indifferent to the matter of abortion, refusing to characterize it as sinful, and citing women’s health, family welfare, and social responsibility as justifications for ending a pregnancy.

As of 1976, Southern Baptists were in favor of legislation allowing abortions in cases of rape, incest, evidence of fetal deformity, and the likelihood of damage to the emotional, mental, and/or physical health of the mother. Evangelicals then clearly didn’t regard abortions as killing babies. The unborn were not regarded as persons.

Napolitano’s assertion that abortion amounts to “killing babies” is offered, not so much as a factual reality, but to appeal instead strictly to emotion, and as such the title of his article is plainly misleading and disingenuous. The Oxford English Dictionary defines “baby” as a very young child or animal, especially one newly or recently born. (Origin: Late Middle English: probably imitative of an infant's first attempts at speech) It’s not generally understood to be a baby until it is born, e.g. “his wife’s just had a baby.”

Napolitano might just as well have entitled his piece: “Killing children,” “Killing kids,” or yes, perhaps even “Killing people,” since he asserts that the unborn at any stage of development are people in order to achieve the greatest emotional impact possible in support of his argument that abortion amounts to murder.

A “person” is defined in the dictionary as a human being regarded as an individual, e.g. “she is a person of astonishing energy.” Again; a human being is traditionally regarded as an individual at birth; not before. Eggs are not typically defined as persons.

People everywhere  traditionally celebrate their date of birth – not their date of conception – in regard to the moment they believe they became an individual person. When was the last time someone asked you where you were conceived? No one has ever asked me that question, but many have asked me where I was born. That’s because traditionally, conception doesn’t matter as far as individuals are concerned – birth matters. You became an individual person at birth. Judge Napolitano wants to change that longstanding tradition which has prevailed since the dawn of human civilization.

Governments certify your date of birth with a birth certificate. That’s the law everywhere. Do you know anyone whose conception was certified but not their birth? I don’t. No one is particularly interested in the date you were conceived. You acquired your personhood and your constitutional rights at birth – not at the moment of conception.

Ted Cruz, for example, acquired his American citizenship when he was born in Canada of his mother who was at that time an American citizen. Whether he is constitutionally qualified to hold the office of President of the United States depends entirely on the legal answer to the question of whether or not thereby he became a “natural born American,” which is what the United States Constitution requires. It all depends upon the circumstances of his birth – not his conception -- which has nothing whatsoever to do with it.

The child of a Mexican citizen conceived in Mexico but born in America is an American citizen by birth and thus has acquired all the federal constitutional rights every American enjoys. If that same child was conceived in America but born in Mexico, it would be out of luck; not an American citizen, but a Mexican citizen. Again; it all depends upon the circumstances of birth – not conception -- which has nothing whatsoever to do with it.

Why? It’s because one is not considered an individual person under the law until one is born. Napolitano knows that but he doesn’t like it. He wants to change it. Good luck, Judge. It will take a constitutional amendment to define eggs as people.

When the American founding fathers conceived of “We the People” in the Constitution, they were in no way referring to the unborn. Fertilized eggs, embryos and fetuses have never been legally defined as people in the USA, or for that matter, anywhere else as far as I know. Only in the religious fantasies of folks like Judge Napolitano are the unborn regarded as persons.

The word “kin” is defined as one’s family and relatives; from the Old English word “cynn” derived from the Dutch word “kunne” meaning “give birth to.” Your “kin,” then, refers to your born relatives – not the unborn. You became your relatives “kin” and they your “kin” when you were born – not when you were conceived.

An “heir” is defined by the laws of intestate succession as “a person legally entitled to the property or rank of another upon that person’s death,” e.g. “His eldest son is heir to the throne.” Once again; one doesn’t become an heir by law until one is born. A fertilized egg, for example, does not qualify as an heir to the British throne. That status is acquired, if at all, only at and after birth.

A hen’s egg is not traditionally defined as a chicken at any stage of its development right up until it has hatched. That’s because, until it hatches, it is still considered an egg. The same is true for the eggs of all birds, reptiles, amphibians, fish, insects, mammals, and other animals, including human beings. A caterpillar, for example, is not defined as a butterfly until after it pupates in its cocoon and hatches out as a butterfly. 

Until birth, the human fetus, like other mammals, is still encased entirely in amniotic fluid within a membrane (equivalent to a shell) which is attached to its mother’s body by placental blood vessels by which it obtains all essential respiration and nutrients. It doesn’t breathe. It doesn’t eat. It is not considered an individual human being – a person or baby, if you will – until the membrane (shell) is perforated at the time of birth. Until birth it is still technically – just like with the offspring of a chicken -- an egg.

Remember as well that a substantial percentage of these developing unborn entities don’t make it all the way to live birth; they are naturally aborted as the consequence of many medical reasons; pregnancies are often miscarried; there are still births. It’s part of the laws of nature.

The reality of this discussion is that Judge Andrew Napolitano has been informed by his religion and his God that human eggs, i.e. the unborn, should be defined by the law as “persons” and be thereby accorded precisely the same legal and constitutional rights that all persons enjoy.

In his own words: “The (Roe vs. Wade) Court felt it was legally necessary to make this dreadful declaration (that the unborn are not persons) because the Constitution guarantees due process (a fair jury trial, and its attendant constitutional protections) whenever the government wants to interfere with the life, liberty or property of any person; and it prohibits the states from permitting some persons to violate the basic human rights of others, as was the case under slavery.”

You see, the judge insists that human eggs should enjoy equal protection and due process of law, the same as you and I:  “Roe candidly recognizes that if the fetus in the womb is a person, then all laws permitting abortion are unconstitutional. The Court understood that abortion and fetal personhood would constitute the states permitting private persons to murder other persons. So, in order to accommodate the killing, it simply redefined the meaning of “person,” lest it permit a state of affairs that due process and the prohibition of slavery could never tolerate. George Orwell predicted this horrific and totalitarian use of words in 1949 in his unnerving description of tyranny, “1984.”

But, did the Roe vs. Wade court really “redefine the meaning of “person,” in order to justify the murder of babies as Napolitano asserts? In a word, no – it most certainly and emphatically did not. Instead, after a careful and thorough historical review of the meaning and usage of the term “person,” the court rationally and logically concluded that the unborn are, indeed, not considered persons.

“Whose personhood will the government define away next?” Judge Napolitano concludes rhetorically. But it is he who insists that the word “person” must be re-defined to include eggs. Ironic, isn’t it?

Now consider for a moment just a few of the unpleasant consequences which would inevitably ensue if Judge Napolitano and the rest of his religiously oriented anti-abortion extremists actually got their wish.  Fertilized eggs would enjoy legal and constitutional rights as “persons.” Their rights, would, of course, in many cases, conflict irreconcilably and adversely with the rights of the persons impregnated with them.

Suppose that a “person” – a young girl perhaps -- just doesn’t want to be pregnant; doesn’t want to reproduce offspring; doesn’t want, for a million different good  and proper reasons, to bear the difficult and often dangerous physical and psychological burden of having her precious and only body used as a vessel for the benefit of succoring another “person” inside it?  Tough luck, the Libertarian judge would say.

Something tells me, however, that Judge Napolitano would probably change his attitude about fetal personhood in a New Jersey minute if by some miracle of biology he himself became pregnant, or if his wife were forcibly impregnated by a rapist or his nine-year-old daughter impregnated by her grandfather.  I can visualize “fetal personhood” flying out the window of his Libertarian mind in any of those nasty circumstances.

He proudly calls himself a Libertarian, who takes a backseat to no one on issues involving liberty, but his religion calls upon him to demand that women have no choice but to carry every pregnancy to term no matter what the circumstances, and regardless of the potentially dangerous consequences to her physical and psychological wellbeing, because all those fertilized eggs are “persons” with constitutional rights which may not be abridged.

What about her liberty? What about her constitutional rights?

Forget about birth certificates; they’d be superfluous and obsolete if fertilized eggs were “persons.” The new “persons” in the womb would require the government to issue conception certificates. That’s because the state would have a lawful interest in protecting them from the moment of conception – by means of force of course. And the state would also have a legitimate corresponding legal interest in the sex lives and reproductive status of every woman of child bearing age and every man who copulates with her.

Apparently, Judge Napolitano, the Libertarian, is good with the idea of the government being intimately involved with every woman’s reproductive condition right up until menopause because, after all, Libertarians believe that the major purpose of government is to secure the rights of persons, and fertilized eggs are persons, right?

So he’s fine with the idea of requiring women to report to the government the details of their menstrual cycles; whether they miss a period; whether they are pregnant. Those little fetus persons’ rights must be secured and protected from the moment of conception.

So nosy neighbors should, for example, be encouraged to contact government child protective services immediately whenever they happen to notice that the pregnant woman next door is not behaving in the best interests of that little “person” inside her.

In practice then, the mother’s constitutional rights would be subordinate to those of the new “person.” She would essentially become a slave to the new “person” inside her sucking the nutrients from her body whether she liked it or not. The state pregnancy authorities could dictate virtually every aspect and activity of her life during the entire pregnancy in the name of the best interests of the new “person” of course.

Women’s bodies would be enslaved by their own eggs and the men who impregnated them enslaved with an obligation to support the products of their own sperm whether they liked it or not. The fertilized eggs would have the legal ability to enforce their constitutional rights utilizing the police powers of the state as a matter of law.

The police would become involved, if, heaven forbid, there were a miscarriage. There would have to be a formal coroner’s inquest, a government investigation to determine, among other things, the cause of death and whether the pregnant woman should be charged with and tried for a crime, or otherwise be held responsible under the law for violating the legal and constitutional rights of the “person” inside her body.  

Thirteen year-old girls who, out of desperation, aborted their own pregnancies by any means would be charged with first degree premeditated murder. Doctors who assisted women with abortions would likewise be guilty of first degree murder and subject to the death penalty right along with their patients.

Naturally, if an egg enjoyed legal and constitutional rights as a “person,” it could,  with the aid of a legal advocate, sue the person carrying it inside her body in a court of law for any number of legal and constitutional violations of such “person’s” rights.

What, I wonder, would it be like to be sued in court by an egg? Could the mother sue that egg “person” inside her body for violations of her legal and constitutional rights?

It boggles my mind.

But one thing I can tell you for sure: Judge Napolitano is wrong!