On the Constitutional Authority of Congress to Protect Unborn Persons

In a new post at The Volokh Conspiracy, Professor Jonathan Adler contests our claim in a Washington Post opinion article that Congress may, under Section 5 of the Fourteenth Amendment, exercise its “power to enforce, by appropriate legislation” the equal protection guarantee for unborn children, protecting the unborn from state laws allowing elective abortion.

Adler objects that (1) the Supreme Court in City of Boerne v. Flores “rejected” our “broad” view of Congress’s Section 5 power when it held that (2) Congress has only “the power to enforce the 14th Amendment’s guarantees” but lacks “the power to redefine what those guarantees are.” We will show that this objection lacks merit. Boerne is no obstacle, as our proposal would not redefine the Amendment’s guarantees.

(1) Did City of Boerne v. Flores “reject” the view we outlined in the Washington Post? No. Certainly, the Court held that enforcement legislation must be remedial — that is, it must be “responsive to, or designed to prevent, unconstitutional behavior” — and that there must be a “congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end.” The Court in Boerne thus set aside Congress’s application of the Religious Freedom Restoration Act to the states because that Act was based on an understanding of the First (and Fourteenth) Amendment’s guarantees that the Court had rejected in an earlier case, and because the Act pervasively prohibited state action that the Court had deemed constitutional.

But even if Boerne’s insistence on the supremacy of the Court’s interpretation of the Constitution over Congress’s were correct as an original matter (which we doubt), nothing in Boerne bars Congress from enacting remedial legislation to prevent and remedy state actions that deprive unborn children of the equal protection of the laws. Again, Boerne taught only that Congress — in justifying its actions under Section 5 — may not contradict the Supreme Court’s own reading of the equal protection or due process clauses. But Congress would not be contradicting the Court by treating the unborn as constitutional persons under those clauses post-Dobbs. For if Dobbs overturns Roe and Casey, the Court will have no holdings on whether unborn children are constitutional persons: Roe’s rejection of the personhood of the unborn will be gone, and nothing in Dobbs itself forecloses constitutional personhood for children in utero. In fact, notwithstanding dicta about returning the abortion question to democratic processes, Dobbs’s rationale for distinguishing other substantive due process cases — based on the state’s interest in what Roe (misguidedly) called “potential life”—actually moves the Court closer to the personhood argument.

Congressional enforcement in this context would thus be quite different, and easily distinguishable, from the legislative action considered in Boerne. It would rest on a congressional understanding of the Fourteenth Amendment that has not been rejected by the Court. And Boerne did not preclude Congress from getting ahead of the Court by treating something (here, state permission of abortion) as a Fourteenth Amendment violation before the Court has spoken on the issue either way. Indeed, the reverse is true: Boerne affirmed that “it is for Congress in the first instance to ‘determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’”

(2) Would congressional action to ensure equal protection for the unborn “redefine” the scope of the Fourteenth Amendment? No again. As we have explained elsewhere, unborn human beings were, at the time of ratification, understood to be both (1) natural persons in law, and (2) persons in ordinary, plain meaning. And we now know better than ever — due to advancements in embryology and the science of human development — that these tiny human beings are as a matter of biological fact whole, living members of the species Homo sapiens, and as such members of the human family, just as newborn infants, young children, and human beings at every other developmental stage are. Federal protection for the unborn would therefore enforce, not redefine, the Amendment’s guarantee of equal protection.

Adler provided no historical support for his view that Congress cannot legislate to protect unborn persons — nor could he have done. In reality, the original meaning of Section 5 was broader than Adler suggests. In the words of Senator Jacob Howard, this provision “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.” Or as Representative Thaddeus Stevens put it, Section 5 “allow[s] Congress to correct the unjust legislation of the States.” Hence the Supreme Court’s 1879 decision in Ex Parte Virginia, which affirmed that the Amendment “was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation.”

Shortly after the Amendment’s ratification, Congress drew on its enforcement power to fight the Ku Klux Klan’s campaign of harassment, abuse, and murder against freedmen on account of their race. Congress enacted the Enforcement Acts of 1870 and 1871, allowing the federal government to intervene when state officials withheld the protection of the laws from freedmen, and creating liability for officials and individuals who conspire together to deprive any person of civil rights or the equal protection of the laws. This was closely tied to what Professor Christopher Green has persuasively shown to be the original sense of the equal protection clause — to ensure that states supplied the (equal) protection of the laws. So too here. No “redefinition” of the equal protection guarantee would be necessary to ensure that it applies with equal force to unborn persons.

For that reason, the legislative filibuster and President Biden’s veto must not deter energetic action by pro-life members of Congress to protect unborn children nationwide. And if such legislation is not forthcoming, then the Supreme Court should not hesitate to vindicate the rights and protect against the victimization of vulnerable persons in the womb.

Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. Josh Craddock is an affiliated scholar with the James Wilson Institute on Natural Rights and the American Founding.