WSJ Letter: A National Abortion Ban Is Constitutional

Your editorial “Lindsey Graham’s 15-Week Abortion Ban” (Sept. 13) calls Congress’s authority to enact national pro-life legislation “constitutionally dubious.” We disagree. Sen. Graham’s bill rightly invokes Section 5 of the 14th Amendment, which empowers Congress to “enforce, by appropriate legislation” the guarantees of the Equal Protection Clause.

Section 5 authorizes Congress to enact legislation to prevent and remedy state actions that deny unborn children the equal protection of the laws. The Supreme Court has 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.”

Neither is there any inconsistency between national pro-life legislation and originalism. The 14th Amendment extended “the equal protection of the laws” to “any person.” The historical evidence is overwhelming that at the time of the amendment’s ratification in 1868, the word “person” had a settled public meaning that included any child living in the womb. State high courts 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.” By the end of 1868, three-quarters of the states had enacted criminal laws against abortion at all stages.

Congress is on firm constitutional ground to enact life-protective legislation that remedies state violations of the equal-protection rights of our tiny sisters and brothers at the dawn of their lives. It is, in truth, neither an ambiguous nor even a close case.

Prof. Robert P. George

Princeton University

Princeton, N.J.

Josh Craddock

James Wilson Institute

Denver, CO