Where does the Constitution say it does not include the unborn?
Roe v Wade only gave a woman the right to abortion for medical reasons. It did not give them the right to kill the unborn. There is a distinct difference.
Roe v Wade specifically says the health of the mother MUST be balanced against the right to life.
Roe v. Wade, 410 U.S. 113, 162 ("We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a non-resident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life.").
Which means all of the arguments about a clump of cells, not being a person, reproductive health are all bogus.
Poisoning and dismembering an unborn child should be illegal, as well as abortion form the purpose of avoiding being a parent. And according to all surveys done of woman seeking and getting an abortion most are done for financial burden reasons and a belief that the father will not be involved. Which means none of those abortions fall within Roe v Wade.
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You make a number of flawed assumptions. First is the claim that the statement "protecting the potentiality of human life" is saying the zygote is a human/person.
Saying that there is a "potential for human life" is not the same as saying "human life exists now". Further the term "human life" has the word "human" as a descriptive adjective. A "Person" is a noun "A human".
Even if we were to claim "well the court meant .. a potential person" it makes no difference as a potential person is not a person.
Your second flawed comment is when you say "the constitution does not say that the unborn are not persons".
This is fallacy. Just because the constitution does not say "the unborn are not persons" does not mean that the constitution intended for the unborn to be included.
Just because we can not prove that the moon around Pluto is not made of green cheese - does not make it so.
Other arguments for the idea that the constitution did not include the Unborn was that Slaves at the time were not considered persons.
The best constitutional argument however is not from the constitution. It is from the principles under which the constitution is to be interpreted which are found in the DOI.
Individual rights and freedoms/liberty are put "Above" the legitimate authority of Gov't. This means that the Gov't is not to make any law that messes with individual liberty.
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.
-- Thomas Jefferson, Notes on the State of Virginia, 1781-82
In this case we have a conflict between the liberty of the woman and the liberty of the mighty zygote or the Fetus.
In such cases the court must balance the conflicting rights. On one side you have the rights of the woman which clearly have a high value.
On the other side you have the rights of the mighty zygote. How do we value the rights of the zygote ?
Since the constitution says nothing (as you point out) we have to value (I don't know).
Clearly the value of the rights of the woman outweighs "We don't know".
It would be anathema to the Rule of Law and the principles on which this nation was founded to allow the Gov't (be it Federal or State) to restrict someone's freedom on the basis of "We don't know".
