Does the Constitution Protect the Unborn?
When the Supreme Court overruled Roe v. Wade (pdf), most of the outrage came from those who believe the U.S. Constitution protects abortion rights. However, a few argued that the Constitution mandates a national standard forbidding abortion.
This essay explains why those who claim the Constitution forbids abortion are as much in error as those who think it legalizes abortion.
I have a long history of advocating for pro-life causes. But there’s a difference between my political preferences and what the Constitution actually says. Respecting what the Constitution actually says is key to the rule of law—necessary, in turn, for a free society. If we disagree with the Constitution, we should work to amend it. We should not fall into the left’s corrupt practice of pretending the Constitution says what it doesn’t.
The Case for the Unconstitutionality of Abortion
The arguments for the view that the Constitution bans abortion have been set forth as follows:
First: It’s a scientific fact that humanity begins at the moment of conception.
Second: A human being is therefore a “person” as the Constitution uses the term.
Third: The Constitution’s Fifth and the 14th Amendments each contains a Due Process Clause stating that no “person” shall be deprived of “life … without due process of law.”
Fourth: Just as slavery was a national moral issue rather than a states’-rights issue, abortion also is an issue of national morality.
Let’s examine each of these arguments.
Argument #1: ‘Humanity begins at the moment of conception’
The essence of the Roe decision was that it was unconstitutional for a state to protect an unborn child, against the wishes of the mother, before the child could survive outside the womb. Although the court purported not to decide when human life begins, its ruling assumed that a fetus necessarily dependent on the mother is only “potentially” human.
This ruling was absurd: One’s humanity isn’t solely a function of dependence or independence. If it were, then America’s large dependent population would be deemed non-human. Roe’s absurdity illustrates that judges are unequipped to make decisions of this kind.
But the fact that humanity isn’t solely the result of independence doesn’t prove that it’s solely the result of conception either. Exactly when life becomes human is a subject on which reasonable and informed people disagree. Some would place the critical moment at the time of conception; others at the time when cells differentiate from each other, or at the time of implantation, or when (and if!) the brain begins to function, or when the fetus has a heart, or when the soul enters the body. Science offers plausible answers and rules out implausible ones, but it doesn’t give us the answer.
In this respect, the question of when humanity begins resembles the question of when it ends—that is, when death occurs. There’s a point in time when we can say a person is definitely alive and a point when we can say a person is definitely dead, but there’s often a twilight zone between the two. To a lesser extent, the question of when humanity begins resembles the issues of when a person ceases to be a child and becomes an adult, or is mentally competent or incompetent.
In a democratic society, the answers to such questions are provided by the people’s freely elected representatives, acting under spiritual, scientific, and popular guidance. When legislatures delegate discretion to physicians and other providers (as they often do), they still impose legal guidelines.
Admittedly, decisions of this kind can be difficult. However, their difficulty argues for their being products of an open, democratic, and deliberative process. Not the results of abstract reasoning or judicial decree.
Argument #2: ‘The Unborn are “Persons” Under the Fifth Amendment’
The Fifth Amendment forbids the federal government from depriving any “person” of life without due process of law. What does “person” mean?
In daily discourse, we often use “person” interchangeably with “human being.” This is not necessarily true in legal language, however. Some traditional legal systems have denied personhood to certain classes of human beings, such as slaves or foreigners. Our own legal system grants personhood to corporations, which aren’t human beings at all, but rather formally organized collections of human beings.
In 1791, when the state legislatures ratified the Fifth Amendment, the American legal system recognized all born human beings, even slaves, as “persons.” But it didn’t recognize the unborn as fully human. And it certainly didn’t recognize the unborn as legal “persons.”
Applying the Fifth Amendment to include the unborn within its word “person” would require changing the meaning of the amendment as its ratifiers understood it. More on that below.
Argument #3: ‘The Unborn are “Persons” Under the 14th Amendment’
When the state legislatures ratified the 14th Amendment in 1868, knowledge of fetal development was far more advanced than in 1791. Accordingly, most states had instituted some legal protection for the unborn.
But granting some legal protection didn’t mean that lawmakers believed the unborn were fully human, much less “persons.” (Lawmakers also grant legal protection to animals and forests, for example.) Although the legislative and public debates over the amendment discussed the “personhood” of ethnic minorities and women, no one seems to have added fetuses or embryos to the list. And in the years after 1868, laws were passed and lawsuits filed to protect the 14th Amendment rights of ethnic minorities and women—but not the unborn.
This and other evidence forces the conclusion that the 14th Amendment’s term “person” doesn’t include those yet unborn.
Other Problems with the Fifth and 14th Amendments
You might respond by saying, “Whatever the opinion was in 1791 and 1868, we now know that the unborn are human and, therefore, ought to be legal persons. So let’s extend the two Due Process Clauses to them.”
Of course, this line of argument reeks of the unprincipled “living constitutionalism” most conscientious Americans reject. But there’s an even bigger problem with it: Even if we interpret “person” in the Fifth and 14th Amendments to include embryos and fetuses, most abortions would remain unaffected.
The Fifth Amendment Due Process Clause prevents the federal government from taking life, liberty, or property without following pre-set procedures. The 14th Amendment extends the same restriction to state governments. But the two amendments apply solely to governments—not to transactions by private parties, such as the typical abortion procedure. In this respect, the Fifth and 14th Amendments are unlike the 13th (abolishing slavery): The 13th applies both to governments and to private individuals; the Fifth and 14th apply only to governments.
In constitutional law, the rule excluding private conduct from the Fifth and 14th amendments is called the “state action doctrine.” The state action doctrine protects federalism and prevents officials and judges from using the amendments to restrict individual freedom.
In sum, as Justice Samuel Alito pointed out in Dobbs v. Jackson Women’s Health (pdf)—and as the late, great Justice Antonin Scalia said repeatedly—the Fifth and 14th Amendment Due Process Clauses really have nothing to do with abortion.
Argument #4: ‘Abortion is a National Moral Issue, not a “States’ Rights” Issue’
I have seen one writer argue that “Abortion is no more a ‘states’ rights issue’ than slavery was in the mid-19th century.”
However, the writer got the history wrong. Slavery was a moral issue, but it also was very much a matter of states’ rights. Even most anti-slavery activists acknowledged this. Abraham Lincoln, for example, agreed that states could maintain slavery within their own borders indefinitely. What Lincoln contended was that Congress should adopt a law abolishing slavery within federal territories.
Slavery ceased to be a states’-rights issue only when Americans passed a constitutional amendment abolishing it. Similarly, those seeking to end abortion in our country will have to obtain a constitutional amendment to do so. The present Constitution will not do it for them.
This essay first appeared in the Aug. 4, 2022 Epoch Times.