What’s Next? The U.S. Constitution Protects the Unborn: The 14th Amendment and Abortion

Alexandra Snyder

The Supreme Court, in Dobbs v. Jackson Women’s Health Organization, held that Roe v. Wade must be overruled because “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” including the Fourteenth Amendment.

Justice Harry Blackmun, who wrote the Court’s opinion in Roe v. Wade nearly 50 years ago, had been desperate to find some constitutional justification for overturning a Texas law that recognized the right to life from conception. While the Roe Court held that women have a

constitutional “right” to abortion under the Fourteenth Amendment, it rejected the idea that children in the womb have a right to life under the same Amendment.

In Roe, Justice Blackmun and his colleagues made an unsupported and unconstitutional determination that the freedom to have an abortion, which they fabricated in Roe, trumps the right to life, which is expressly protected in the Constitution.

Justice Samuel Alito, writing for the Court in Dobbs, discussed at length whether abortion is a protected liberty under the Fourteenth Amendment, but was silent on whether unborn children are considered persons who have a right to life under the same Amendment. Justice Kavanaugh, who thankfully joined the majority in overturning Roe, insists that the Constitution is “neither pro-life nor pro-choice.” Kavanaugh argues that while state interests in protecting fetal life are “extraordinarily weighty,” the extent to which children in the womb are protected under the law should be left entirely to the democratic process.

The Fourteenth Amendment provides that no state shall “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.”

So why are unborn children not protected under the Fourteenth Amendment?

According to constitutional scholars John Finnis and Robert George, they should be. In their amicus brief1 in Dobbs v. Jackson Women’s Health Organization, Finnis and George conclude that Roe should be overturned and Mississippi’s 15-week abortion ban must be upheld “because the unborn are ‘person[s]’ guaranteed equal protection and due process by the Fourteenth Amendment.”

To support their argument, Finnis and George cite numerous laws and treatises that recognized unborn children as persons at the time the Fourteenth Amendment was drafted: “Authoritative treatises — including those deployed specifically to support the Civil Rights Act of 1866, which the Fourteenth Amendment aimed to codify—prominently acknowledged the unborn as persons.”

Finnis and George’s equal protection approach would result in the equal application of existing state laws regarding feticide to all unborn children, without exceptions for elective abortions. Because the mother’s life also is protected under the Fourteenth Amendment, states could be required to allow “urgent or life-saving medical interventions even when these would unavoidably result in fetal death,” such as removing an ectopic pregnancy.

Other scholars, including the late Supreme Court Justice Antonin Scalia and law professor Jonathan Adler, disagree with Finnis and George. They argue that abortion should be left to the states to regulate or restrict—or not. Adler holds that “most questions of life and death, and the extent to which actions that harm or kill others should be criminalized, are left to the states.” He cites as an example the Uniform Determination of Death Act (UDDA), which is model legislation many states have adopted to determine brain death. Leaving aside the inconsistencies in the application of the UDDA, which has resulted in people being declared “dead” who are still walking and talking among us, the function of the UDDA is to distinguish between the living and the dead.

Rights inhere in living human persons. They do not accrue to the dead. There is no third category of living human beings who are not persons.

Adler’s argument fails because states may not arbitrarily create categories of living people and afford or deny fundamental rights based on those fictional categories. This is the exact purpose of the Fourteenth Amendment.

Unborn children belong to the category of the living. Until Roe, children in the womb were widely considered persons with protections under the law. Abortion jurisprudence has never turned on the question of whether the child in the womb is alive or dead. Rather, courts, both state and federal, have capriciously determined that some living people should have the benefit of legal protection, while others should not.

This is neither constitutionally nor logically defensible.

If unborn children are alive—and they are—they must be treated like other living persons under the law, to the extent practically possible. Equality under the law includes, first and foremost, protection from being deliberately killed. There are no separate categories of human beings based on gestational age or geographical location. It is incoherent that a living human being would be worthy of protection in one state and treated as nothing more than medical waste in another.

This is why the Fourteenth Amendment was necessary and why its application to unborn children in the womb is fitting and proper.

1. https://lifelegaldefensefoundation. org/wp-content/uploads/2022/06/ Finnis-George-Amicus-Brief-Dobbs.pdf

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