Unborn Children as Constitutional Persons: V. The Authorities Cited by the Roe Court Affirm the Property Rights of Unborn Persons

In his Roe opinion, Justice Blackmun disingenuously dismissed the property rights of unborn children as being only contingent in nature and because the "[p]erfection of the interests involved . . . has generally been contingent upon live birth [. . .] the unborn have never been recognized in the law as persons in the whole sense." 149 And, in Casey , Justice Stevens quoted Justice Blackmun without qualification on this important point. 150 Yet, in Roe , to support this speculation, Justice Blackmun cited three articles in footnote 66: "Louisell, Abortion, The Practice of Medicine and the Due Process of Law , 16 UCLA L. Rev. 233, 235-38 (1969); Note, 56 Iowa L. Rev. 994, 999-1000 (1971); Note, The Law and the Unborn Child , 46 Notre Dame Law. 349, 351-54 (1971)." A cursory examination of these articles reveals that they not only do not support Blackmun's contention but refute it. In the UCLA Law Review , David W. Louisell, Elizabeth Josselyn Boalt Professor of Law, University of California, Berkeley, wrote: The common law's recognition of the unborn child as a human person for property law purposes appears to reflect a basic psychological evaluation that in law, as in ordinary thought, "child" includes the conceived child but as yet born. Apparently the civil law and its terminology reflect the same normative use of language. 151 Justice Blackmun's claim that "Perfection of the interests involved, again, has generally been contingent upon live birth" does not square with Louisell's ...