Abortion and the 14th Amendment
On June 24, 2022, the Supreme Court of the United States issued a landmark decision in the case of Dobbs v Jackson Women’s Health Organization and overturned the 1973 Roe v. Wade decision. It also overturned the 1992 Planned Parenthood v. Casey decision. In Dobbs v Jackson, the Supreme Court ruled that the U.S. Constitution “does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives” (Dobbs v Jackson, p. 69; cf. pp. 78–79). In short, the legality of abortion is now in the hands of each of the fifty states.
For those who oppose abortion, this represents progress for which we should be thankful. Prior to the Dobbs decision, individual states could not legally protect the lives of unborn human beings in any meaningful way. When attempts to do so were made, those laws were inevitably found to be in conflict with Roe or Casey or both and struck down. Now, after the Dobbs decision, such laws are possible. The immediate task now of those who oppose abortion is to work to enact state laws that protect the lives of unborn children.
The fact that Dobbs has made this a real possibility is good news, but it must be understood that it is not unqualified good news. Just as it is now possible for states to enact laws that protect the lives of unborn human beings, it also remains possible for states to allow unrestricted abortion on demand. Some states will move in one direction, while others will move in the opposite direction. In other words, the fight isn’t over yet. The United States still has a long way to go before the lives of the unborn are protected in every state.
The fight will not be won until and unless the status of the fetus is legally and permanently resolved at a national level. In the Dobbs decision, the Supreme Court explicitly refused to address that question. The decision states: “The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes . . .” (p. 65). In other words, the legal status of the fetus is in the hands of individual state legislatures. Some of these state legislatures will determine that the fetus is a human person deserving of the same rights as any other human person. Other state legislatures will determine that the fetus is not a human person and not deserving of legal protection.
In one sense, the United States is in a position similar to the position it was in prior to the Civil War with regard to the status of people of African descent. Before the Civil War, some states passed laws acknowledging the fact that people of African descent were just that - people, human persons deserving of the same rights as every other human person. Other states determined that they were property and denied them the rights of human persons. This issue was not resolved until the 13th, 14th, and 15th amendments to the Constitution were adopted between 1865 and 1870. These amendments abolished slavery and mandated the same protection under the law for people of African descent as for any other human person. Obviously, the change in the Constitution did not automatically cause a corresponding change in the hearts of those who believed people of African descent were less than fully human, but it was step in the right direction.
Something along these lines is what is now required in the United States if we are to take another step in the right direction with regard to the abortion question. The current Supreme Court does not believe it possesses “the authority either to declare a constitutional right to abortion or to declare a constitutional prohibition of abortion” (See Dobbs v. Jackson, J. Kavanaugh, Concurring, p. 5). It appears that the majority of this Court believes the Constitution as it stands is silent on the status of the fetus.
I’m not convinced that this is the case. I believe that an argument can be made that something about the status of the fetus can be inferred from the wording of the 14th amendment. Section 1 of the 14th amendment to the United States Constitution reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The first thing that must be observed is that this amendment was originally written in the context of Reconstruction immediately after the Civil War. It is explicitly addressing the status of former slaves. This does not mean, however, that it cannot be applied to other related issues, such as the status of the fetus. In the first place, the Supreme Court has long acknowledged that the words of the constitution may extend beyond the matter they were originally intended to address. Second, the very use of the word “born” in the first sentence of the amendment invites such an application. When carefully considered, it can be seen that the words of the 14th amendment implicitly protect the lives of unborn children.
The first sentence begins “All persons born or naturalized in the United States . . .” These persons are then said to be citizens of the United States and citizens of the state in which they reside. In other words, those who are born or naturalized in this country are citizens of this country. At this point, then, we have a reference to “persons” and to “citizens.” The amendment goes on to say that no state “shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This refers to those who have been born or naturalized in this country and have therefore become citizens. The amendment then continues, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The category of person is a broader category than that of citizen. It certainly includes people in this country who have not yet been naturalized and who are not yet citizens. In other words, a non-citizen is still a person who is owed protection under the law. The important question is whether the unborn are also persons who are owed protection under the law.
Note again the first words of the first sentence: “All persons born or naturalized in the United States . . .” This cannot possibly mean that the act of being born confers personhood on the fetus. If it did, then it would also necessarily mean that the act of being naturalized confers personhood on a non-citizen. That is patently absurd. But note that the words “born” and “naturalized” relate to the word “person” in exactly the same way in this sentence. This means that what is true of those persons who have not yet been naturalized is true of those persons who have not yet been born. Those who are “naturalized” are already “persons,” and those who are “born” are also already “persons.” What changes at the point of birth or naturalization is not their status as persons. It is their status as citizens of the United States. As citizens they have certain rights and privileges. However, the right to life and protection under the law is not limited to “citizens.” Those rights are explicitly applied to persons. The law does not say that an immigrant who is not yet a citizen does not have the right to life and protection under the law. The same is true of those persons who have not yet been born.
When the 14th amendment says “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” the word “person” must be interpreted in its immediate context. The immediate context is the first sentence of the amendment which describes those who are born and those who are naturalized as already being persons. Because this is the case, the unborn are persons according to the text of the 14th amendment and thus under the legal protections of this amendment.
John M. Finnis and Robert P. George, in an amicus brief written for the Dobbs case, provide additional contextual information about the meaning of the word “person” at the time the 14th amendment was adopted. They demonstrate that in the common law context of that time, unborn children were understood to be persons. It was within this common law context that the 14th amendment was written. What this means is that both the external context (19th century common law) and the internal context (the very words of the amendment) imply that unborn children are considered to be persons by the 14th amendment.
To those who object that we should only consider as persons those whom the 14th amendment explicitly mentions as persons, we should first note that the 14th amendment does not explicitly define “persons.” The meaning of the word is assumed from common law usage (which did include the unborn). Secondly, corporations are not explicitly mentioned in the 14th amendment, and yet corporations have been treated as persons under the 14th amendment for well over a century. I am not making the case that corporations are persons. What I am suggesting is that since the law can recognize corporations as persons without explicit mention in the 14th amendment, there is no evident barrier to the recognition of unborn children as persons. In fact, there is much more self-evident reason within the words of the amendment to include unborn children in the category of persons than there is to include corporations.
Although there is sufficient reason to conclude that the word “persons” in the 14th amendment implicitly includes the unborn, it does not appear that the Supreme Court will agree at any time in the near future. Until and unless it does, the only constitutional option would be a new amendment explicitly including the unborn under the protections outlined in the 14th amendment. Amending the U.S. Constitution, however, is an incredibly difficult task that could take generations. That doesn’t mean that it should not remain a goal, but it should not be the only goal. There are other intermediate goals towards which we should strive.
In the first place, as stated above: the immediate task now of those who oppose abortion is to work to enact state laws that protect the lives of unborn children. If the majority of the population of the state is in favor of such laws, it may be relatively easy to achieve this goal. Some states, in fact, have already prepared for this day and will be enacting such laws in the coming days and weeks.
Second, because there are many states in which the majority of the population is in favor of allowing abortion, the task of persuasion must continue. Although some supporters of abortion may be unaware of this, it is a scientifically undeniable fact that at conception, a genetically distinct human being at its earliest stage of development exists. Today, the denial that the fetus is a human being falls into the same category as the denial that the earth is spherical. Unfortunately, now that this has been acknowledged by all embryologists, most of those who support abortion have changed the rules of the debate. Now, most argue that while the fetus may be a human being, it is not a person. The problem with this line of thinking is that once we disconnect the definition of person from the definition of a human being, we have a subcategory of human beings that places some human beings under the protection of the law and leaves others without such protection.
Every attempt to create a subcategory of human beings who are truly persons as opposed to those humans who are not persons has proven to be arbitrary and inconsistent. They are arbitrary because they tend to be based on the particular value judgments of whoever is making the attempt. For one, it may be certain intellectual abilities. For others, it may be certain physical characteristics. But whose value judgments are we going to use to determine which human beings count as persons and which do not? We all know that in the past, such subcategories were used by those in power to define people of Jewish descent and people of African descent as non-persons.
The attempts are inconsistent because the arbitrary definitions of "person" are applied only to the unborn when in fact they could just as easily be applied to other human beings as well. A fetus isn’t a true person because it depends on another human being for oxygen and nutrition? What was the status of all those on ventilators and feeding tubes while sick with Covid? A fetus isn’t a true person until it reaches a certain level of physical maturity? What point in the development of a human being counts as having reached that level? One could just as easily argue that humans don’t reach physical maturity until they reach puberty? Are pre-pubescent children not persons? We could continue, but the point should be clear enough. All human beings at all stages of development, regardless of race, sex, intellectual abilities, or anything else are persons deserving of full protection under the law.
The most significant arguments in favor of abortion depend on issues related to the legal rights of women. But as with any rights, competing rights always have to be taken into account. This is particularly true if we are talking about basic rights to life. For example, in the United States we have a constitutional right to free speech, but that right does not include the right to scream “Fire!” in a crowded theater. Why? Because such speech could result in a panic that kills another human being. When the lives of human beings are involved, other rights are constrained.
Similarly, a woman’s right to choose will be limited when the life of another human being is involved. Any woman has the abstract right to choose many things, but that right does not include the right to choose to push her car into a lake with her small children inside. That is obvious to all but psychopaths because all but psychopaths understand that the young children in the car have a right to their lives that outweighs their mother’s right to choose. The right to choose does not include the right to choose to kill an innocent human being. What this means is that everything depends on whether the fetus is a human being with a right to live. If it is, then any so-called "reproductive rights" have to take into account another human being with his or her own right not to be deprived of life. If the fetus is a human being, then in every pregnancy, it is not merely a medical decision involving a woman and her doctor. There is another human person involved too.
If the fetus is a human person, questions regarding its life are no different than questions regarding the life of an infant or toddler or young child. They are all human beings at different stages of physical development. The birth canal is not some portal that magically transforms a fetus into a human being or a human person. The child is the same being 30 seconds before birth and 30 seconds after birth. It is the same being 30 days before birth and 30 days after birth. This child has the same body, the same DNA, the same eyes, nose, ears, mouth, hands and feet. If it is the same being, it has the same rights.
We should be extremely grateful for the overturning of Roe v Wade. It is a true milestone that many did not believe they would ever see in their lifetime. But the fight isn’t over. Unborn children will continue to be killed in those states which continue to treat the unborn as less than human. We should prepare for the work that remains if we are to protect the lives of all unborn children in these United States.