"In oral argument before the Roe court as well as in the Roe majority opinion, the Supreme Court seemed impressed by the historical fact that no case had been found in which the pregnant woman was prosecuted for allowing an abortion to be performed on herself and by the fact that the punishment for conviction under the abortion statutes was much milder than the punishment for homicide. The Court found this to suggest that the fetus was not considered a person, as was the victim in a homicide. Such a conclusion is simply not warranted since there are other valid explanations. For example, if a 12-year-old intentionally kills a born individual in Illinois, no crime has been committed since the child is not legally responsible. No one could suggest that the victim of the act was not a person because the killer was not or could not be prosecuted. If a 15-year-old intentionally kills another, but is proceeded against under the Juvenile Court Act, one could hardly argue that the victim is not a person. The explanation for this legal phenomenon is that there are special circumstances surrounding the commitment of an act, circumstances which the lawmaker may properly and reasonably consider in formulating means to protect state interests and values-in the examples given, the age and assumed immaturity of the actor; in the abortion situation, the assumed stresses on the woman burdened by an unwanted pregnancy. These factors may justify and explain different treatment of the woman or even the physician in the abortion context, just as they justify or explain different treatment of the child of tender years or even of one who kills another under severe provocation. Although in modem jurisprudence constitutional history alone has not been allowed to dispose of every question of constitutional interpretation, this brief historical background casts doubt on the soundness of two of the Supreme Court's critical conclusions in Roe v. Wade: (1) that abortion was not considered a crime by most of those who sup- ported the fourteenth amendment in 1868;' and (2) that the purpose of the anti-abortion laws was solely to protect the woman's health and not the life of the fetus. In addition, it casts doubt on the Court's holding that the concept of "person" does not embrace the unborn. The effect of this doubt surely is to augment the obligations of the Supreme Court to account for a requirement of birth as a condition precedent for membership in the class of constitutional persons."