Why the 14th Amendment Does Not Prohibit Abortion

Oral argument will be heard by the Supreme Court on Wednesday Dobbs against Jackson Women’s Health OrganizationThe justices will then reconsider how the Constitution safeguards women’s rights to abort their pregnancy.

Because of this, the law at issue is inconsistent with the “undue load” standard. CaseyThe briefing is mainly focused on the question of whether or not. Roe  Casey As an original matter they were right, but (if so) how stare decisis principles counsel upholding, modifying, or overturning such decisions. They will likely dominate oral argument Wednesday.

Pro-life supporters may be more ambitious. These advocates argue that not only is it possible to have a better life, but also that Roeit was incorrect in the original matter. However, this argument also shows that the Fourteenth Amendment protects unborn life, and bans abortion, when properly interpreted. In this amicus brief, the same argument was made. DobbsJohn Finnis, Robert George and the Finnis article The First Things. Texas used the same argument. RoeHowever, none of them have attracted even one justice’s vote to the Supreme Court.

This question was put to me by Josh Hamer, the UChicago Law Students for Life student chapter of The Federalist Society. It was quite a. fun event in front of a packed house. The remainder of this post  (after the break) summarizes my argument for why the Fourteenth Amendment does not prohibit abortion.

To argue that the 14th Amendment bans abortion, you need to make two distinct propositions. 1) The unborn “persons” are covered by the Fourteenth Amendment. 2) A state’s failure to ban abortion amounts to denying Equal Protection and Due Process. While both are required to support the argument, I believe that the Constitution’s structure, text and history don’t support either.

Let’s begin with the text. The 14th  Amendment extends Due Process and Equal Protection to all persons. On the contrary, Privileges or Immunities are not extended to citizens. Only those who were “naturalized” in the United States are considered citizens. Originalists think it’s the P-or I clause which is responsible for substantive rights under Section 14th Amendment. An originalist might conclude that there are no substantive rights granted to unborn children.

The P-or I question is irrelevant, since there are no historical or textual evidence to indicate that unborn persons fall within the scope of the Constitution. The Constitution includes the 14th Amendment. It uses “person” throughout, but it is often used in ways that are only applicable to people already born. Section 2 of 14th Amendment deals with age. This has been a matter of course from conception, but birth.

Others argue that “persons”, a broad enough term to encompass corporations, can also include unborn children. Two things are wrong with this counter argument. The first is that corporations cannot be considered persons in the context of the constitution. Second (as Ed Whelan has noted here), corporations may sometimes be considered persons due to “merely an association of individuals united for one purpose”. Therefore, denying constitutional rights in a corporation’s name would mean that rights are being denied to individuals. But they don’t have rights elsewhere. For example, corporations aren’t subject to the 14th Amendment.

Even though one may disagree with these claims and decide that the unborn persons are persons according to the Equal Protection or Due Process clauses of the Equal Protection, that does not necessarily mean that the state has a constitutional right to prevent abortion.

Let’s begin with due process. This clause does not appear to have been intended to ban abortion or other private acts. The 14th Amendment does not apply to private behavior, unlike the 13th Amendment. Private abortions do not constitute constitutional violations. Even if one disregards the concern about state action and assumes that it protects substantive rights in general, the Due Process Clause of Amendment 5th Amendment never was interpreted to limit abortion in the District of Columbia, federal territories or elsewhere. This despite the fact that all individuals were protected under Due Process since the ratification of Amendment 5.

If Due Process does not exist, can there be an argument that allowing abortion to continue is Equal Protection? Arguments would suggest that protecting unborn people from domestic violence is incompatible with the obligation of each state to guarantee equal protection. This argument appears more plausible than it seems. This argument isn’t subject to state action objection. Neither does federal failure to restrict abortion before the 14th Amendment was ratified matter. Equal Protection clauses are not included in the 5th Amendment. The argument in this case is still not plausible.

If the Unborn are considered persons in the Equal Proteciton Clause, and not persons according to other parts of Section 14th Amendment, it is clear that abortion has never been treated as fully equivalent as intentional homicide by very few states.  In their brief, George and Finnis note that there have been many more state-imposed restrictions on abortion in the 19th Century than Justice Blackmun suggests. RoeThis is a valid point.  However, even though they claim that feticide is not the same as intentional homicide, especially prior to quickening which was sometimes treated as a misdemeanor if it was prohibited at all. This is because states have rarely adopted legislation to ensure that unborn children are protected equally with others.

Furthermore, even though many states considered revising their abortion laws by the mid-19th century, before or after the ratification of Amendment 14, there’s no evidence they believed that Amendment 14 (or the principles of equal protect more generally) would require that homicide be treated similarly to feticide. AnyPolitical figure and commentator believed that the 14th Amendment was violated when the state failed to ban abortions in the 19th century. While abortion became a very important issue in post-bellum times, it was not easy to tie this matter to the 14th Amendment.  In any state there isn’t a single barking dog.

The absence of Any Because such an interpretation would significantly distort the Constitution, 19th century support is more evident. The states have the power to decide the questions about life and death and whether actions that cause harm or death to others should be punished. Most states have now adopted the Uniform Definition of Death Act. But this choice is left to states by the Constitution. They also have the option of deciding what kinds of killing are allowed (like self-defense) or not. Different states have always been able to define the boundaries between death and life, what constitutes homicide and when it is permissible (or not) to kill. This freedom to decide in conformity with the state’s preferences wasn’t eliminated by the 14th Amendment. The answers of these questions vary between states, but this is because they are determined by the policies made in their respective states and not federal mandates.

It is important to note that Finnis George’s argument does not just state that Section 5 of the 14th Amendment grants Congress the authority to prohibit or limit abortion. (A question that I raised here). Their argument instead is that section 5 of the 14th Amendment requires all states to ban abortion. This “equal protection” of laws applies to unborn children at every stage of their development. The argument lacks textual, historical or structural support. I will briefly explain why. However it requires a high degree of federal judicial oversight of state law enforcement and policy-making. Their argument states that state homicide laws must prohibit elective abortion. This requirement should be enforced in some way by the courts. Although George and Finnis believe this is possible with minimal disruption, George’s cursory arguments on the matter show the opposite. Courts must rewrite existing state laws in order to enforce their provisions.

 Federalist No. No. 45. James Madison stated that the state’s reserved powers “extend to any objects which, within the normal course of affairs,” concern both the life, liberty, and proprieties and also the improvement and security of the State. However much the ratification  of the 14th Amendment curtailed these powers and rebalanced our federal system, it did not make abortion unconstitutional nor did it require states to treat all abortion as homicide. As far as we know, no justice has ever held anything else. And none of those justices who believe themselves to be bound by the 14th Amendment’s original public meaning should.