Articles

The Pro-Life Reply to: “Abortion is a Constitutional Right”

February 19, 2020


The 1973 Supreme Court decision, Roe v. Wade,
required states to allow abortion. The seven men forming the majority said the
right to privacy includes a woman’s decision to end the life of her preborn child, effectively
through all nine months of pregnancy. This decision was widely criticized, even
by legal scholars who support abortion. Notably, the Justice who wrote the Roe v Wade
opinion, Harry Blackmun, made an important
admission. He wrote: if prenatal “personhood is established,”
the case for abortion “collapses, for the fetus’ right to life would then be guaranteed
specifically by the [Fourteenth] Amendment.” The Fourteenth Amendment was ratified in 1868
after the Civil War to ensure that no human being would be denied basic constitutional
rights. The Amendment says states may not “deprive
any person of life, liberty, or property, without due process of law, nor deny to any person
the equal protection of the laws.” So let’s take up Justice Blackmun’s challenge. Are preborn children “persons” within the
original public meaning of the Fourteenth Amendment? Let’s use three different tools to answer
this question: 1. Definitions from when the
Fourteenth Amendment was ratified; 2. Historic state practices
related to abortion; and 3. The Framers’ understanding
of the Amendment. First, definitions. According to dictionaries of common and legal
usage at the time of the Fourteenth Amendment’s adoption, the term “person” was largely
interchangeable with “human being.” The 1864 edition of Noah Webster’s
Dictionary defined the term “person” as relating “especially,
[to] a living human being; a man, woman, or child; an individual of the human race.” No dictionary of the era referenced birth
or the status of being born in its definition of “person,” “man,” or “human being.” In legal usage, every human being was considered
a “natural person.” In his discourse on “The Rights of Persons,”
the authoritative treatise writer William Blackstone wrote “life is a right inherent
by nature in every individual.” For Blackstone, if human life existed, legal
personhood existed also. There was no distinction between biological
human life and legal personhood. Second, state practice. Centuries of English common law tradition
consistently treated abortion as the wrongful killing of a human being. From her founding, the United States adopted
this tradition and prohibited abortion as soon as human life could be detected. When the Fourteenth Amendment was adopted
in 1868, the states widely recognized unborn children as persons. Nearly every state had criminal legislation
prohibiting abortion, and at least twenty-eight jurisdictions labeled abortion as an “offense
against the person.” Nine of the ratifying states explicitly valued
the lives of the preborn and their pregnant mothers equally by providing the same range
of punishment for killing either during the commission of an abortion. Furthermore, at least ten states considered
abortion to be either manslaughter, assault with intent to murder, or murder.” In twenty-three states and six territories,
laws referred to the preborn individual as a “child.” In fact, the same Ohio legislature that ratified
the Fourteenth Amendment called abortion “at any stage” nothing less than “child-murder.” Thus, at the time of the Fourteenth Amendment’s
adoption, nearly every state understood “person” to include prenatal life. Third, the framers’ understanding of the
amendment’s legal application. The Framers expected the Fourteenth Amendment’s
guarantees of equal protection and due process would apply to every member of the human
species within U.S. jurisdiction. Senator Jacob Howard, who sponsored the Amendment
in the Senate, declared the Amendment’s purpose was to “disable a state from depriving
not merely a citizen of the United States, but any person, whoever he may be, of life,
liberty and property without due process.” Even the lowest and “most despised of the
[human] race” were guaranteed equal protection. As Justice Hugo Black later put it: “the
history of the [Fourteenth] Amendment proves that the people were told that its purpose
was to protect weak and helpless human beings.” Considering this evidence, it is clear Roe
v. Wade was wrongly decided. Preborn children are constitutionally entitled
to due process and the equal protection of
the laws. The Constitution, properly interpreted, prohibits
abortion under the Fourteenth Amendment, and every constitutional officer who swears an
oath to uphold the Constitution has a duty to ensure those rights are protected.

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