Our Pro-Life Constitution
A CENTURY and a half ago, we fought a civil war and amended the Constitution to ensure that every human being could enjoy the equal protection of the laws. But today, by permitting abortion, some states have denied that protection to children in the womb. From the moment of fertilization, those victims of abortion are fully human. In our legal tradition, every living human being is a person. And the Constitution says that no state can deprive any person of the equal protection of the laws.
In the aftermath of the Supreme Court’s Dobbs decision, the conservative legal movement must affirm the constitutional personhood of unborn children and their entitlement to the equal protection of the laws. Like overturning Roe, securing equal protection for the unborn is likely to be a long-term effort. But our Constitution is up to the task, and it would be much easier to enforce it than to pass a new, yet-to-be proposed or ratified constitutional amendment.
Regrettably, some critics of constitutional personhood for the unborn — such as Clarke D. Forsythe, one of the foremost pro-life attorneys in the nation, who writes elsewhere in this issue of NR — disagree not only with the prudence of such an approach but also with its soundness. They believe that unborn children are the only class of human beings whose natural and legal rights the Constitution fails to equally protect. This position is sure to confuse and mislead precisely those future lawmakers, presidents, and judges who should be supremely confident in the natural and constitutional rights of unborn persons. Denying personhood at this pivotal moment in constitutional history is neither legally sound nor politically prudent.
To understand why constitutional personhood is the next logical step for the conservative legal movement, we must attend closely to Dobbs. As we will see, Dobbs is consistent with and even favorable to a future decision that secures the equal protection of the laws for unborn children. Nothing in Dobbs forecloses a future ruling recognizing unborn personhood. Neither does anything in the decision prohibit states or the coequal federal branches from recognizing the same. Then, to answer the critics, we will revisit the evidence that unborn children are “persons” within the meaning of the 14th Amendment. Finally, we’ll consider the realpolitik arguments against acknowledging that obvious truth.
To properly interpret Dobbs, we must first distinguish the majority’s holding (the legal rule that resolves the case) from its dicta (the tangents, asides, and commentary not strictly necessary to deciding the question presented). The only issue squarely before the Court was whether the Constitution prohibits states from regulating pre-viability abortions. Its answer was simple: No, because “the Constitution does not confer a right to abortion.” The Court did not need to decide whether unborn children are constitutional persons to answer that question, and neither party to the case argued that issue. It would be extraordinary, then, if the Court had nonetheless decided it. As Chief Justice John Roberts noted in his separate opinion, courts typically follow a “fundamental principle of judicial restraint” by declining to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
By reserving any decision on personhood for the future, the Court necessarily returned “the issue of abortion to the people’s elected representatives.” But the practical implication of the Court’s ruling should not be confused with a statement of legal principle. The ruling does not mean that the majority adopted Justice Brett Kavanaugh’s position that the Constitution is neutral about abortion. Indeed, the majority emphasized that its “opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth” — including Justice Kavanaugh’s view. To claim that the Dobbs justices “unanimously rejected constitutional personhood,” as Forsythe does, is thus profoundly inaccurate on the decision’s own terms. And even if that claim were accurate, the foremost question is what is true about our Constitution, not whether that truth is at present likely to command a majority.
The Court’s rhetoric about returning abortion to the people is also subject to qualifications articulated elsewhere in the opinion, such as the states’ “legitimate interests” in “respect for and preservation of prenatal life at all stages of development.” Despite its overbroad dicta, the logic of Dobbs militates toward recognition of the unborn child’s constitutional personhood. No fewer than five times, the majority observed that abortion is “critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of ‘liberty’… because it destroys what [Roe and Casey] called ‘fetal life’ and what the law now before us describes as an ‘unborn human being.’” The majority repeatedly “stressed” this point as the “critical moral question posed by abortion.” The Court even cited evidence that “an infant in ventre sa mere is regarded as a person in being.”
At the heart of Dobbs, then, is the unavoidable fact that abortion takes a human life. If abortion does not take a human life, then the distinction that the majority drew between abortion and other substantive-due-process cases collapses. But if abortion does take a human life, then the question ineluctably arises as to whether that living human being is — like every other human being — a natural and constitutional person entitled to protection. Hence, abortion activists such as the nonprofit organization Pregnancy Justice correctly recognized that, in Dobbs, “the Supreme Court has sown the seeds for a constitutional right to life for fetuses.”
Far from precluding prenatal personhood, Dobbs takes strides toward its recognition. The Supreme Court now has no holding concerning an unborn child’s constitutional personhood. It would be entirely consistent with Dobbs and the principle of stare decisis for a future federal court or even a Supreme Court majority to hold that unborn children are constitutional persons within the meaning of the 14th Amendment’s equal-protection clause.
It is now well established that when the 14th Amendment was ratified in 1868, the word “person” had a settled public meaning that included every human being — children in the womb among them. As Dobbs recites, abortion was unlawful at common law during all stages of pregnancy, and the unborn child was considered a legal person whenever it would be to his benefit. State high courts leading up to 1868 declared that the unborn child throughout pregnancy “is a person” and hence, under “civil and common law,” “to all intents and purposes a child, as much as if born.” One early decision used language that bears a striking resemblance to the 14th Amendment to make the point: “A child in the womb of the mother is under the protection of the law, and possesses all the privileges of a living being.” By the end of 1868, three-quarters of the states had supplemented the common law with statutory bans against abortion at all stages, many of which classified abortion as an “offense against the person” and described the unborn victim of abortion as an “infant” or “child.”
The 14th Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The original meaning of this clause was to secure (equal) protection of the fundamental rights of persons — including the rights to life and personal security — as these had been expounded in Blackstone’s Commentaries on the Laws of England and leading American treatises. The prevailing originalist view is that a state violates the equal-protection clause when it selectively withdraws remedies in tort for injuries or denies the protection of criminal laws. If a state protects some persons in their rights to life and personal security, then it is constitutionally required to protect all persons — including the unborn.
A state’s legislative act to allow elective abortion withdraws the “protection of the laws,” unequally, from a class of human beings — babies in the womb — and therefore violates their constitutional rights. Such state action exposes a disfavored class of persons (unborn children) to lethal violence.
But some wonder: If the 14th Amendment equally protects the unborn from homicide, why did its framers not say so expressly during the ratification debates? This argument from silence rests on the questionable premise that Congress meant only to achieve specific and immediate ends rather than to create generally applicable rules of decision. Like some advocates of “original intent,” Forsythe apparently supposes that constitutional meaning is determined by the intent of its drafters or ratifiers rather than by the meaning that the public would understand in the enacted text. But the misbegotten search for original intentions has been in disfavor since Justice Antonin Scalia’s powerful critique of intentionalism. Originalist judges today understand that what a text requires may be different from what the lawmaker foresees (though there is little doubt that the framers of the 14th Amendment would have welcomed this interpretation had they foreseen it).
All agree that the 14th Amendment was most immediately intended to protect black Americans against discriminatory — unequal — treatment. But the amendment’s framers deliberately chose the broad term “any person” to protect any human being who might be denied due process or equal protection on any ground. As Forsythe observes, the states posed no abortion problem in 1866. The law already protected unborn children and recognized them as persons. Hence Forsythe’s second objection answers his first: That unborn children were already legally protected renders utterly unsurprising the legislative silence about the amendment’s application to the unborn. State laws denying the equal protection of homicide laws to unborn children were not enacted until nearly a century later.
The argument from silence also founders in other contexts. Consider that when the 14th Amendment was adopted (and long afterward), children born to parents who were unmarried were not equally protected under the laws of most states. For example, Louisiana deemed the statutory term “child” to mean only “legitimate child.” And, to use Forsythe’s words, the framers “were not concerned about” bastardy. It was not until 1968 that Levy v. Louisiana applied the equal-protection clause to illegitimate children, explaining that they are “not ‘non-persons’” because “they are humans, live, and have their being.” But, as constitutional-law attorney C’Zar Bernstein observes, it would be odd to interpret congressional silence about illegitimate children as evidence that such children were meant to be excluded from the amendment’s protective ambit or to conclude that the Supreme Court got the original public meaning of “person” wrong in Levy. Arguments from silence are often weak, this instance among them.
Without demanding the definitional exactitude of a legal code, Levy had no trouble finding that the Constitution provided “specific, effective legal protection” to illegitimate children simply because they “are humans live, and have their being.” After all, it is a constitution we are expounding, and the interpretation of such “undefined” terms — based on historical evidence and established principles of law — is our stock-in-trade.
Rather than accept the weight of evidence, Forsythe attempts to raise the burden of proof, bizarrely demanding irrefutable evidence of personhood. Such a standard is beyond what would be required even at a capital-murder trial. It implies that the Court should adopt a likely false judgment despite exceptionally strong (if defeasible) evidence. Constitutional cases are decided not on “irrefutable evidence” but on the best available legal evidence. And that evidence favors prenatal personhood.
Detractors make much of the fact that no Supreme Court justice has ever adopted the personhood view. Justice Kavanaugh hung his hat on that argument in his Dobbs concurrence. But numerous justices have argued, in reverse, that the unborn child cannot be a constitutional person because abortion would then necessarily be outlawed nationwide. Justice Harry Blackmun famously conceded as much in his Roe majority opinion. Justice Potter Stewart, at that same oral argument, called it “critical” that “if it were established that an unborn fetus is a person within the protection of the 14th Amendment,” the appellant Jane Roe “would have almost an impossible case.” Years later, Justice John Paul Stevens likewise admitted that if there was no “difference between a fetus and a human being” then “the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures.”
More important, the meaning of the 14th Amendment is not determined by agreement of the justices. It certainly would not be the first time that a constitutional application had been overlooked by its robed interpreters. Prior to District of Columbia v. Heller, no justice over the course of two centuries had ever expressly said that the Second Amendment protected an individual right to bear arms. Yet an originalist Supreme Court held so in 2008. Or consider the 80-year judicial consensus opposing incorporation of the privilege against self-incrimination against the states. Justice Felix Frankfurter observed in 1947 that “the scope of [the 14th Amendment] was passed upon by forty-three judges” and that, “of all those judges, only one, who may be respectfully called an eccentric exception, ever indicated” that it incorporated the Bill of Rights against the states. That lone dissenter — the first Justice John Marshall Harlan — later prevailed, and the “eccentric” exception became the rule. That no justice of the Supreme Court has yet adopted an argument so deeply rooted in constitutional text and history as prenatal personhood says little about that argument’s validity or future viability.
Critics also wring their hands about dragging the Supreme Court back into the “abortion-umpiring business.” As if it ever left! Regardless of whether the Supreme Court declares the constitutional personhood of the unborn, federal courts will continue to wrestle with a surfeit of abortion cases — as evidenced by the multitude of cases since Dobbs involving the FDA’s approval of abortion drugs, the performance of abortions in Veterans Affairs hospitals, and the question of whether federal laws such as the Emergency Medical Treatment and Labor Act require states to allow abortions. The notion that federal courts can simply extricate themselves from deciding abortion cases is fantastical if not delusional. And the proposed alternative of a federal human-life amendment is no alternative at all — a nation that could muster the supermajorities to pass it would hardly need it.
Rather than attempt to gauge political winds, courts must apply the original meaning of the equal-protection clause in the cases that come before them (regardless of whatever threats Senator Chuck Schumer might make). “It is emphatically the province and duty of the judicial department to say what the law is” regardless of political prognostication, wrote Chief Justice John Marshall. And after Dobbs, courts are free to recognize the 14th Amendment’s protections, just as a three-judge federal panel did in Steinberg v. Brown three years before Roe.
But the courts were never intended to be the primary enforcers of the 14th Amendment. Rather than fixating solely on the judiciary, a movement toward prenatal personhood should focus on both congressional and executive action.
The most natural and immediate avenue for advancing equal protection for unborn persons is Congress. Section 5 confers an enumerated power to “enforce… by appropriate legislation” the amendment’s guarantees. Even Justice Kavanaugh acknowledged twice that future abortion policy might be addressed “in the States or Congress.” By mid 2022, more than 100 members of the House of Representatives had co-sponsored legislation to “implement equal protection” under the 14th Amendment to protect “the right to life of each born and preborn human person.” The Senate companion bill had 18 co-sponsors. Indeed, every Republican Party platform since 1984 has supported “legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.”
The next pro-life president also has a role to play. In a 1988 proclamation, President Ronald Reagan advocated that “the personhood of the unborn be declared and defended throughout our land” under the 14th Amendment. As I argued in a paper for the anti-abortion legal-advocacy group Americans United for Life, the next pro-life president may fulfill his constitutional duty to “take Care that the Laws be faithfully executed” by issuing an executive order to ensure that unborn children are treated as persons by each department and agency under his purview.
But if the unborn were not persons, Congress would lack the power to enact national life-protective legislation under Section 5, and the president would lack the authority to issue such an executive order. In an attempt to neuter the courts, Forsythe hobbles the other branches as well.
Forsythe and many who agree with him share the laudable goal of ending the tragedy of legal abortion; we differ only in strategic emphasis. In the years following Roe there was much discussion and dissension about the future of the pro-life movement, and the same will be true as that movement navigates its success in Dobbs. But it would be unfortunate if, at this early hour, advocates for the unborn discarded the use of one of their most powerful legal tools. If the unborn are human beings — as they undeniably are — then we must have the courage of our convictions and seek the full acknowledgment of them as persons under our Constitution.
This article appeared in the January 2024 print edition of National Review.