We start from the premise that illegitimate children are not "nonpersons." They are humans, live, and have their being. They are clearly "persons" within the meaning of the Equal Protection Clause of the Fourteenth Amendment.
-- Levy v. Louisiana
Suggesting that by nature the effort will be incomplete (putting aside my inability to pick up all the grammatical errors), I discovered this particular quote after the recent version of my constitutional opus went to press. But, I can be forgiven, since this useful (if meager -- it was not discussed, the opinion as a whole rather thin*) definition of sorts was not referenced in later opinions to my knowledge. And, some -- not just in the abortion context -- would merit such references to personhood. Not even the anti-abortion "opinion" in What Roe v. Wade Should Have Said that dealt with the matter.
The children in Levy were clearly "persons," even if they traditionally were treated in an inequitable fashion. This belies the sentiment of the minority in the case referenced in the note, which hyperbolically noted:
The Court ... resorts to the startling measure of simply excluding such illegitimate children from the protection of the [Equal Protection] Clause, in order to uphold the untenable and discredited moral prejudice of bygone centuries which vindictively punished not only the illegitimates' parents, but also the hapless, and innocent, children.
Some do argue that the Court does wrongly exclude the unborn from the Clause, even though they are (surely in some sense) human, alive, and have "being." The author of Levy (Justice Douglas) suggested why in his concurrence in Doe v. Bolton, the companion case to Roe v. Wade:
The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known, rather than the unknown. When sperm meets egg, life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed.
This is not his own words, but a quote from a well quoted (among the lower courts in abortion cases) law review article by retired Justice Clark, one I have yet to find in its entirety (Lexis does not seem to have it, nor does the web). And, again, he really does not discuss it in detail. Still, it suggests "human" and "live" has to be taken in context, meaning in a constitutional sense some advanced point in development. "Being" also seems telling ... think "brain death" (end of being) and maybe "brain life" too (this hooks it to consciousness, but some other aspect of development might be used for "being" too).
It is a bit amazing that among the debates of abortion, euthanasia, and related issues, the courts do not dwell more into questions of "personhood," even the dissenters generally focusing on questions of state power and limited visions of what constitutional liberty means. I think a firmer discussion would be useful, if not downright necessary. Clearly, the area is sensitive, and judges (who do dwell into such questions somewhat, if often in lower courts fewer people read) rather not touch them. Tough luck.
Anyway, interesting stuff.
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* The ruling along with its equally conclusionary companion case was important all the same because it was a foundational case respecting the rights of illegitimate children. A later case protected a related "intimate, familial relationship," traditional inequality or narrow definitions in the area notwithstanding, involving an illegitimate father.
Adding the theme that the child is in effect being harmed because of the "sins of the mother," the conclusion is telling and remarkably broad (with implications, e.g., for same sex couples):
Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would.
The dissent in case a few years later rejecting an inheritance (as compared to a tort) claim spelled out the themes in more detail (if not exactly completely convincingly, see the concurrence by Justice Harlan), after pointedly taking a potshot at the author of the majority. It is notable that besides often talking past each other, justices vent their spleen at each other as well in many opinions. This is so even when they generally claim to respect each other, as the current bunch say they do.