November 01, 2005,
Samuel Alito, now the presdient's nominee for retiring Sandra Day O'Connor's Supreme Court seat, concurred in Alexander v. Whitman (1997). His brief opinion there is liable to stir interest on both sides of the Roe debate.
The case was argued by the distinguished New Jersey pro-life lawyer Harold Cassidy. Basically, Cassidy argued that the state unconstitutionally discriminated against his client Karen Alexander (and her stillborn child) by denying tort recovery precisely because the child was stillborn. Had the baby survived birth by an instant Ms. Alexander could have sued various medical personnel for negligently causing the death of her child.
The heart of the panel opinion against Alexander was the distinction taken to have been established by Roe between "constitutional persons" and those who are merely persons "as a matter of fact." The court accepted as true (as it had to in this 12(b)6 action) Cassidy's assertion that a "stillborn child is a human being from conception." That truth was nonetheless "immaterial" to the legal issues at hand, the court said. "The question is not whether a stillborn child is a human being from the moment of conception, but whether that unborn 'human being' is included within the meaning of 'person' contained in the Fourteenth Amendment." The "scare quotes" around "human being" and "person" are the court's, not mine or Cassidy's. Trick or treat.
There surely is a distinction between law and morality. Those who ignore it are deservedly called either lunatic positivists or moral fanatics. But, in a sane world, when it comes to the question of who counts as a subject to whom the most basic duty of justice do not kill no one would say that there is difference between morality and law. In a sane world the moral (or metaphysical) truth would compel the legal conclusion. In a sane world we would all recognize what Justinian was among the first to teach: Law is for persons.
Ours is not a sane world. Judge Alito concurred in the Third Circuit's holding, expressing "almost complete agreement" with it. But his brief concurrence reliably signals that he is sane. Alito said that the "court's suggestion that there could be 'human beings' who are not 'constitutional persons' is unfortunate." Just so. And he was right to observe that the Supreme Court has declared that the unborn are not persons within the meaning of the Fourteenth Amendment. Alito was willing apply the law laid down by the higher Court but only after signalling that the law he applied was "unfortunate."